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Liebherr India Pvt Ltd. Versus Commissioner of Customs (Port) , Kolkata

2016 (9) TMI 357 - CESTAT KOLKATA

Refund of excess CVD paid - arithmetical error - requirement of reassessed bill of entry - certificate from chartered accountant regarding unjust enrichment - Held that: - non filing or late filing of appeal against the original assessment on the bill of entry is not relevant and appellant can challenge the assessment by way of a refund application - an opportunity of personal hearing should be extended to the appellant by AC Refunds to explain their case. Appellant shall demonstrate before AC r .....

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RDER Per Shri H. K. Thakur This appeal has been filed by the appellant against OIA No. 258/CUS(Apprg.)/KOL(P)/2013 dt 19/1/11 passed by Commissioner (Appeals) Strand Road, Kolkata as first appellate authority. 2. Sh. Sukendu Bhattacharya (Advocate) & Sh. R. N. Bandopadhyay (Consultant) appeared on behalf of the appellant. Sh. S. Bhattacharyya argued that due to calculation error in the bill of entry with respect to Retail sale price (RSP/MRP/ excess CVD got paid. That as per certificate of m .....

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a copy of reassed bill of entry and were also asked to produce Chartered Accountant s certificate regarding unjust enrichment. That is was also specified in this letter dt 26/29-8-11 that if these documents are not furnished within 15 days then claim will be decided on the basis of available documents. That no order rejecting their refund claim has been passed by AC, Refunds so for. That appellant vide another letter dt 12/9/11 furnished a copy of unjust enrichment certificate of Chartered Accou .....

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against the assessed bill of entry is not necessary & appellant can challenge the assessment by a refund application :- (i) CC (I & G) New Delhi Vs Prima Telecom Ltd. [2011 (266) ELT 386 (Tri.-Del)] (ii) E. I. Dupond India Ltd Vs CC (Import) Mumbai [2015 (330) ELT 405 (Tri.-Mumbai)]. (iii) Akzo Nobel Coating India Pvt Ltd. CC (Sea), Chennai [2014 (312) ELT 91 (Tri.-Chennai)]. (iv) Secure Meters Ltd Vs CC, New Delhi [2016 (333) ELT 303 (Tri.-Del)]. 2.1. That by virtue of letter dt 26/29-8 .....

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ime period and was correctly dismissed as time barred by the first appellate authority. 4. Heard both sides & perused the case records. It is observed from Para 3 of the OIA dt 25/11/2013 passed by the first appellant authority that one of the point for deliberation raised by the appellant was that their case was only for rectification of an arithmetical misstate, which was within the powers of DC, NSCBI Airport, for which there is no time limit. It is observed from the provisions of Sec 154 .....

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he Commissioner (Appeals) observed that the fact of showing higher value in the invoices issued by the supplier as compared to the contracted rate in the purchase order is not being disputed by the department. He also noticed that the supplier of the goods has submitted a written apology vide their letter dated 10-1-2005. They had also sent revised invoices. The payment to the overseas supplier is as per purchase order and in terms of the revised invoices. He also observed that the adjudicating .....

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d by the overseas supplier who has also submitted apology in this regard. The Appellant also filed the Bills of Entry on the basis of the value mentioned in the invoices without comparing the same with the contracted price. Therefore the excess duty was paid on account of the accidental slip or omission and is covered under section 154 of the Customs Act 1962. The observation made by the Adjudicating Authority in this regard that the case is not covered under section 154 is incorrect. 6. Revenue .....

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ng the assessment order. This being a case of wrong mentioning of the price in the invoice, other than the one agreed upon purchase order, is a clear case of clerical error covered by the provision of Section 154 of the Customs Act. No infirmity can be found in the order of the Commissioner (Appeals). We, accordingly, reject the appeal filed by the Revenue. 4.2. Similarly in the case of Akzo Nobel Coating India Pvt Ltd Vs CC (Sea) Chennai (Supra), while remanding the case CESTAT Chennai made fol .....

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by producing proper documents that there was a mistake at the time of initial assessment and other conditions of Section 27 are satisfied, the appellant will be eligible for refund. The matter is remitted to the adjudicating authority for deciding the refund claim on merit considering the directions as above. 4.3. In the case of Secure Meters Ltd Vs CC New Delhi (Supra) also following view was taken by CESTAT Delhi in Para 6 :- 6. There is no dispute about the fact that the invoice of the import .....

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ibunal in the cases of Tata Iron & Steel Co. Ltd. v. CC (Port), Kolkata (supra) and Celcius Refrigeration Pvt. Ltd. v. CC, New Delhi (supra), wherein the Tribunal has held that mention of wrong currency in the bill of entry as the application of wrong exchange rate is a clerical mistake and when on account of such clerical error a higher amount of duty has been paid the re-assessment is not required before filing of refund claim, as the clerical mistake can be corrected in terms of the provi .....

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re filing of the refund, it was not required for the appellant to challenge the assessment order and, as such, the judgment of the Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) (supra) is not applicable to the facts of this case, and therefore, the impugned order upholding the rejection of the refund claim on this ground is not sustainable and is liable to be set aside. 4.4. In all the cases at Para 4.1, 4.2 & 4.3 above Apex Court s decision in the case of Priya Blu .....

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