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TMI Blog2018 (8) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 that the assessment had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions that the decision of the Apex Court in the case of Flock (India) Pvt. Ltd., would apply in its full force in customs cases also. It is his submission the case in the hand seems to be that there being finalization of customs duty paid, in the absence of challenge to the assessment, the refund claim has been correctly rejected. 7. We find that there is no dispute as to the fact that filing of the shipping bill, discharge of the customs duty appellant herein and also question of considering the FOB as cum duty value. We find on an identical issue in the case of Sameera Trading Company (supra) wherein, (one us was M.V, Ravindran was on the) held as under: "4. We have carefully perused the case records and considered the rival submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 17(4) of the Customs Act, 1962 (the Act) ordered on the shipping bill was for the limited purpose of revising liability following the ascertainment of exact Fe content and moisture content in the Ore. He also observed that Circular cited by the respondents did not apply to the assessments already finalized. 5. We find that the impugned order relied on the following case laws to allow the appeal filed before him : (i) IP Rings Ltd v. CE (AIR), Chennai - [2006 (202) E.L.T. 61 (Tri. Chennai) (ii) Senka Carbon Pvt. Ltd. v. CC, Chennai [2007 (216) E.L.T. 397 (Tri. - Chennai)] (iii) Birla Jute Manufacturing Company Ltd. v. CC, Calcutta [1984 (15) E.L.T. 179 (Tribunal) The Commissioner found that the refund claim could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of duty paid on excess freight was denied by the authorities following the decision of the Apex Court in the case of Collector v. Flock India Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] and Priya Blue Industries Ltd. v. Commissioner [2004 (172) E.L.T. 145 (S.C.)]. The Tribunal observed as follows while allowing the appeal filed by the assessee : "4. A bare perusal of the above provisions makes it clear that no obligation has been cast on the appellant to make an application under the said section. The authorities mentioned therein are themselves competent to take note of any accidental slip or omission and correct thereafter at any time. Thus, the above provisions give enough power to the authorities mentioned therein without any limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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". On a plain reading it is manifest that not only clerical or arithmetical mistake in any decision or order, but errors arising from any accidental slip or omission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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