TMI Blog2010 (9) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant factor, directly effecting the assessment, higher Customs duty was assessed, wherein the ratio of Hon’ble Supreme Court judgment in the case of Priya Blue have been distinguished. Accordingly, the objections raised by the Department and the findings of the Commissioner (Appeals), in the impugned order to the effect that the appellant is not eligible for any relief, in view of Supreme Court judgment in Priya Blue is not sustainable and deserves to be set aside - appeal allowed - decided in favor of appellant. - Appeal No. C/759 to 767/09 -Mum - Final Order Nos. A/516-524/2010-WZB/CIV/(SMB) - Dated:- 29-9-2010 - Shri. Ashok Jindal, J. For the Appellant: Shri Vishal Agarwal, Advocate For the Respondent: Shri S.S. Katiyar, SDR ORDER Per : Ashok Jindal; Heard both sides finally on 19.8.10. As it was a bunch of nine appeals, the learned Advocate for the appellants was directed to file synopsis along with details of each appeals within 15 days of the final hearing. The learned DR also sought to file written submission within 15 days but the DR sought extension of time to file the written submission and finally he submitted the written submissions on 13.09.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate appearing on behalf of the appellants submitted that while assessing finally the Bills of Entry, the adjudicating authority has not considered the decision of the apex court in the case of TISCO (supra) wherein it was held that no additional duty of customs (cess) is payable on import of coking coal. He also submitted that the adjudicating authority is bound by the decision, while assessing the Bills of Entry, the adjudicating authority committed a mistake by not considering of the decision of the TISCO (supra) hence, the said mistake can be rectified under Section 154 of the Customs Act, 1962. He also submitted that as per Article 141 of the Constitution of India, the decision of the Hon ble apex court is binding on all Courts within the territory of India and as per Article 144 of the Constitution of India, all authorities, Civil and Judicial in the territory of India shall act in aid of the Supreme Court. Hence, the decision of the apex court was binding on the adjudicating authority while assessing the Bills of Entry and the same was omitted by accidental slip by the adjudicating authority during the course of assessment. Hence, the mistake is rectifiable under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (232) ELT 367, this Tribunal has applied the provisions of Section 154 in a case where the assessing officer had omitted to give effect to an exemption notification in respect of certain goods imported. He further submitted that in the case of G.S. Metalica vs. Commissioner of Customs(Import)- 2007 (217) ELT 466 this Tribunal held that omission to apply the correct rate of duty could be rectified by the proper officer even during the refund proceedings. He also submitted that in the case of Hero Cycles vs UOI - 2009 (240) ELT 490 (Bom.) the Hon ble High Court of Bombay while dealing with a Writ Petition seeking action under Section 154 in respect of a similar situation where a claim for refund filed by the importer has been rejected on the ground that the assessment of Bill of Entry has not been challenged, directed the proper officer to amend the original assessment by holding that the mere fact that there was an inadvertent error on the part of the importer in not claiming benefit of exemption notification cannot result in denial of the said benefit. It was the duty cast on the authorities to assess the goods and impose duty in accordance with law. The Hon ble High Court als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotest at the time of provisional assessment, same is to be refunded without asking to challenge the final assessment. He also referred to the decision of this Tribunal in their own case reported in 2009 (247) ELT 606 (Tri - Mum) and submitted that the facts of that case are somehow different from the facts of the present appeals. In fact, in that case the adjudicating authority asked the appellant to make the payment of cess after considering the decision of TISCO (supra) but which is not in the instant appeals. Finally he relied on in the case of Alnoorani Tobacco Products vs CCE reported in 2004 (170) ELT 135 wherein the Hon ble apex court held that circumstantial flexibility, one additional or different fact may make world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. Finally he prayed that the decision of Priya Blue (supra) which was relied on by the lower authority is not applicable to the instant appeals. Hence, the impugned orders are liable to be dismissed and the appeals be allowed with consequential relief. 6. On the other hand the learned DR submitted that in these appeals the sole ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer while dealing with the refund claim. He further submitted that if an assessee who pays duty under protest and fails to file appeal even when the Bills of Entry are finally assessed has lost the statutory remedy under the law and must suffer the consequences of his actions. He further submitted that the case law relied upon by the appellants are not relevant to the facts of these appeals. Hence, they are not to be considered but in support of his contention he placed reliance on the following case law:- 1. CCE Vs. Tata Iron Steel Co. Ltd. 2003(154) ELT-343(SC) 2. Priya Blue Inds. Ltd. Vs. CC(P) 2004(172) ELT-145(SC) 3. CCE Kanpur Vs. Flock(I)P. Ltd. 2000(120) ELT-285(SC) 4. Sesa Goa Ltd. Vs. CC Goa 2009(247) ELT-606(TRI-MUM) 5. Dwarka Das Vs. State of M.P. 1999 AIR(SC) 1031 6. Jailaxmi Coelho vs. Oswal Joseph Coelho 2001 (4) SCC 181 7. Samarendra Nath Sinha Vs. Krishna Kumar Nag 1967 AIR 1440 8. CCE Vs. Samudram 1997(95)ELT-33(MAD) 9. Master Construction Co. Vs. State of Orissa 1966 AIR 1047 10. Triumph Nuclear Medicine Vs. CC 2008(223) ELT-74(TRI-MUM) 11. Tecumseh Products India Ltd. vs. Commissioner of Customs (Import) Mumbai Order No. A/160/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereon equal to Rs.2,32,855/- 4 C/762/09-Mum 02/05-06 dated 20.10.2005 Hard coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.3,23,859/- 5 C/763/09-Mum 07/05-06 dated 14.3.2006 Goonyella coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.2,28,429/- 6 C/764/09-Mum 02/06-07 dated 7.4.2006 Metropolitan hard coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.92,709/- 7 C/765/09-Mum 06/06-07 dated 20.12.2006 Tahamoor hard coking coal ash content below 12% No duty was assessed as payable. Bill of Entry contained an endorsement to the effect that Customs cess- Nil, as this coal is imported and not raised or/manufactur ed and despatched from collieries in India, as per Hon ble supreme Court judgment in case No. 2003 (154) ELT 343. However, an amount of Rs.5,52,861/- deposited under protest. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th law but while assessing the Bills of Entry, the proper officer failed to consider the decision of the Hon ble apex court in the case of TISCO (supra) in the appeals covered under situation (a). Now, the question arises that when the proper officer failed to assess the Bills of Entry in accordance with law can be rectified under Section 154 of the Customs Act, 1962 or not? 14.1. As per the learned DR, the proper officer has passed the order without considering the decision of the apex court in the case of TISCO (supra) are not covered by Section 154 of the Customs Act, 1962 and in support of this contention his main stress on the following judgements which are dealt in details as under in following cases. 14.2 In the case of Dwarka Das vs. State of M.P-1999 AIR(SC) 1031, the Trial Court had specifically held that the respondents-State is liable to pay future interest only, despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant in so far as pendente lite interest was concerned. In that case, the Hon ble apex court has held that the prayer for pendente l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, This being the position the Trial Court had the power under section 151 and section 152 to correct its own error which had crept in the judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it. It is evident that the Apex Court approved correction under section152 by the Trial Court because it found that the tenor of the judgement of Trial Court showed that the Court meant to pass a foreclosure decree and had no occasion to pass a preliminary decree for sale and it was only through an accidental slip or inadvertence that in a part of its judgement, the Trial Court used phraseology proper in a decree for sale and in this case the Hon ble apex court allowed the correction. 14.4. In the case of CCE vs. Samudram - 1997 (95) ELT 33 (Mad) the Hon ble High Court of Madras found that no specific finding has been recorded exonerating the respondent alone out of the total number of 8 persons to whom the notice of adjudication proceedings has been issued. This would go to inevitably discloses that the omission to advert to the name of the respondent or the omission to make reference to the respondent at the stage of recording a findings of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them and it is the tariff rate, which has been applied and duly calculated. According to them duty element comes down to Rs.29.59 lakhs approximately against the duty confirmation of Rs. 58.94 lakhs. In this case it has been specifically communicated to the appellant by the Asst. Commissioner through a letter that duty was correctly quantified. When there is a clear-cut findings by the Commissioner that duty has been correctly quantified hence the plea that it is an error cannot be rectified under Section 154 of the Customs Act, 1962. Hence, the facts of the case are also not relevant to the cases before me. These facts deals the matter in situation c . 14.7. The learned DR also relied on the decision in the case of Tecumseh Products India Ltd. vide Order No. A/160/10/CSTB/C-II dated 7th May 2010. The facts somehow are different as in that case the appellant has to fulfill the conditions of the Notifications to avail exemption and it is the matter of record that the appellant fulfilled the one condition of the Exemption Notification but could not met the 2nd condition and the required certificate as per the 2nd condition was obtained after the assessment of the Bill of Entry. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of assessing the Bill of Entry and same can be corrected by the proper officer. In these appeals, the proper officer failed to take the cognizance of the decision in the case of TISCO (supra) while assessing the Bills of Entry which can be termed as accidental slip or omission. As per the law dictionary omission means neglect or failure to perform what the law requires and in this case law requires to assess the Bill of Entry after taking note of the decision of TISCO which was omitted by the proper officer. If for such omissions or errors committed by the proper officer, the same is to be corrected while dealing with refund claims filed by appellant, the same will tantamount to be done under Section 154 of the Customs Act, 1962. That is why the legislature incorporated the Section 154 of the Customs Act into the statute book to rectify such omission or error without challenging the assessment. In the case of Asst. Commr. Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. - 2008 (230) ELT 385 (S.C.) the Honble apex court has held that an error apparent would mean an error which strikes on mere looking and does not need long drawn out process of reasoning. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification had not been extended, filed a claim for refund which was rejected on the same ground as in the instant case. The Tribunal while dealing with the assessees appeal held as under:- 7. We have gone through the records of the case carefully. The appellants imported Newsprint and filed the Bills of Entry. The assessment is carried out by the assessing officer. When the goods are subjected to Customs Duty, it is the responsibility of the assessing officer to correctly assess the goods to duty. The importer, in the Bill of Entry, furnishes the description of the goods. He also submits documents like invoice, packing list, technical literature, bill of lading, etc. so that correct assessment is carried out. Generally, assessment involves classification of the goods, valuation and applying the correct rate of duty taking into account the exemption notifications. The import of the goods with regard to the Import-Export Policy is also to be examined. The word assessment includes all the above. As regards the rate of duty, the Tariff Schedule against the description of the goods mentions the rate of duty. However, in certain cases, the goods are unconditionally exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied by the proper officer even during refund proceedings and the Tribunal has further observed as under:- 10. I have considered the rival submissions. In an identical case, this Hon ble Tribunal in the case of VST Industries Ltd. v. CC, Mumbai reported in 2007 (207) E.L.T. 513 (Tri-Mum.) = 2007 (5) S.T.R. 59 (Tribunal) has held that the ratio of judgment in the case of Priya Blue Flock (India) would not come in the way of Customs Officer while passing an order under Section 154 of the Customs Act, 1962. It may be mentioned that in the aforesaid case in VST Industries Ltd., the appellant therein claimed the refund of excess Custom duty on excess freight and without noticing the same, the Bill of Entry was assessed by the Customs Officer resulting in excess payment of Customs duty which was sought to be refunded. The facts of the case as well as present appeal are identical, inasmuch as on account of omission on the part of the Customs Officers to take note of the relevant factor, directly effecting the assessment, higher Customs duty was assessed. ? 11. The present case is squarely covered by the decision of this Hon ble Tribunal in the case of VST Industries wherein the rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 149 of the Customs Act, 1962 which permits amendment of a Bill of entry after clearance of goods for home consumption based on documentary evidence which was on record at the time of clearance of the goods. 19. In these appeals also when the appellants imported the impugned goods it was on record that the decision of TISCO (supra) passed by the Hon ble apex court that no cess is payable on coking coal at the time of import, the cess on such coking coal was payable only if the coking coal was raised or manufactured in collieries in India. The assessment of Bills of Entry ought to have been amended to give effect to the law laid down by the Hon ble Supreme Court in the case of TISCO (supra). 20. From the above discussion, it is clear that in the Appeals No. C/759 to C/767/09 except C/765 and C/766 of 2009, the proper officer had committed the error by omission not to consider the decision of the Hon ble apex court in the case of TISCO (supra) which amounts to omission or accidental slip while assessing the Bills of Entry and the same is covered under Section 154 of the Customs Act, 1962. Accordingly, the assessments need not to be challenged in these appeals and are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
