TMI Blog2018 (8) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... ) And Hon ble Mr. P. Venkata Subba Rao, Member ( Technical ) Shri G. Prahlad, Advocate for the Appellant Shri Dass Thavanam, Superintendent (AR) for the Revenue ORDER [ Order Per : M. V. Ravindran ] This appeal is directed against Order-in-Appeal No. 34/2010- VCH dated 02.08.2010. 2. Heard both sides and perused the records. 3. On perusal of records, it transpires that the issue is regarding rejection of refund claim filed by the appellant with the Lower Authorities. 4. The relevant facts that arise for consideration, after filtering out unnecessary details are, the appellant herein filed the shipping bill for export on 20.09.2008 and discharged the applicable customs duty on 24.09.2008 considering FOB value as value on which customs duty needs to be discharged. Subsequently, appellant preferred an appeal for the refund of an amount of the customs duty in excess relying upon the board Circular dated 10.11.2008 wherein, board had clarified that till 31.12.2008, export duty discharged FOB will be the value as cum tax FOB. The said application for refund was rejected by the Adjudicating Authority as well as the First Appellate Authority on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Iron Ore fines under shipping bill No. 64/08-09 dated 9-8-08. They paid export duty of ₹ 3,74,43,899/- on 11-8-08. Further, the exporter paid an additional amount of ₹ 2,08,408/- following chemical test of the sample for determining the Fe content and moisture content in the Ore. The Assistant Commissioner had assessed the duty liability on the export consignments taking FOB value as transaction value material for payment of duty. On 10-11-08, CBEC issued a Circular indicating that a policy decision had been taken that till 31-12-08, the existing practice of computation of export duty and cess by taking the FOB value as cum-duty price may be continued and directed to finalize all the pending cases accordingly. The respondents accordingly filed refund claim for the excess duty paid considering the FOB value as cum-duty value. After due process of law, the Assistant Commissioner rejected the refund claim on the ground that the respondents had not challenged the assessment on the shipping bill. In taking such a decision, he followed the Apex Court judgment in the case of Collector of Central Excise, Kanpur v. Flock India Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.)] and deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. The above judgment was concerned with the provisions relating to refund under the Central Excise Act. The ratio applies to refund claims under the Customs Act as well. However, Section 27 dealing with refund, etc. does not override the provisions of other Sections of the Act. 6.2 Section 154 of the Act reads as under: Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 7. We find that it was the onus of the assessing officer to correctly q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned decisions of the Hon ble Supreme Court. In another case of rejection of claim for refund of excess duty paid by the appellants, in M/s. Aditya Birla Nuvo Ltd. [2008 (222) E.L.T. 249 (Tri. Bang.) = [2009 (15) S.T.R. 752 (Tri)] case, following the ratio of the judgments of the Apex Court in Flock India Pvt. Ltd. (supra) and Priya Blue Industries Ltd (supra), the Tribunal held that the appellants were entitled to claim reassessment in terms of their refund application. The appeal was allowed by remand to the original authority. The Tribunal had followed the decisions in the case of Karnataka Power Corporation Ltd. v. Commissioner [2002 (143) E.L.T. 482 (S.C.)] and Jindal Vijayanagar Steels Ltd. v. Commissioner [2006 (206) E.L.T. 529 (Tribunal) = 2008 (11) S.T.R.108 (Tribunal)]. We also note that in this case excess amount of duty was paid owing to a mistake in the calculation of the duty. The Tribunal in the case of Commissioner of Customs, New Delhi v. Hero Honda Motors Ltd. [2008 (227) E.L.T. 482 (Tri. - Del.)] allowed the appeal filed by the assessee with the following findings : 11. Section 154 of the Customs Act reads as under :- Section 154. Correction of c ..... 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