TMI Blog2012 (10) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to assess according to the law and refusal to amend the document would result in an irregular assessment - in terms of provisions of Section 149 of Customs Act, 1962, the Bill of Entry allowed to be amended Refund – Held that:- Relief of refund claimed is not maintainable before the order of assessment is amended or modified - he has not passed on the duties and as such the question of unjust enrichment would not arise in the matter - C/50/2006 - - - Dated:- 29-2-2012 - Mr. M.V. Ravindran, Mr. B.S.V. Murthy, JJ. Shri Jigar Shah, Adv.: for Assessee. Shri R. Nagar, A.R.: for the Revenue. Per: MR. B.S.V. Murthy: The appellant vide their letter dt.24.S.06 had requested for amendment in the Bills of Entry No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dismissing the SLP filed by the Revenue as reported in 2010 (252) ELT A 103 (SC). Further, he has also relied upon the decision of Hon'ble High Court of Kerala in the case of Uol Vs.Aluminium Industries Ltd- 1996 (83) ELT 41 (Ker.), to submit that the decision of Hon'ble High Court of Kerala, in this case upholding the stand of Revenue that arithmetical/clerical error can be corrected under Section 154 and in that case, correction of arithmetical error resulted in charging of higher rate of duty. 5. Ld.A.R. submits that it was omission on the part of the appellant, which has resulted in charging at higher rate of duty and the case is not covered by Section 149 of Customs Act, 1962, as rightly held by lower authorities. 6. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manifest which are not allowed to be amendment of when there is a fraudulent intention. In the case of amended document under Section 149, the amendment has to be allowed when a request is based on documentary evidence, which was in existence at the time of clearance of the goods. We also find that the decision of Hon'ble High Court of Mumbai relied upon by ld.Counsel is relevant and the relevant paragraphs 8 9 are reproduced below: "8. In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notifications. If the Petitioner on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after original orders of assessment which have been quoted in our judgment are modified. " 8. No doubt, in that case, the Hon'ble High Court of Mumbai had exercised least jurisdiction, but the decision is squarely applicable and the direction given was that the assessing officer has a duty to assess according to the law and refusal to amend the document would result in an irregular assessment and therefore what was held by Hon'ble High Court was that it was the duty of the officer to make amendment. It has to be noted that in that case also the issue involved was difference in rate of duty. The SLP filed by the Revenue was dismissed. 9. The decision of Hon'ble High Court of Kerala also supports the view. Inspite of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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