TMI Blog2018 (9) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... stake and they have given a credit note, for the difference involved. Appraiser, who was present in the personal hearing, before the Original Authority, has shown that the split values appearing in the invoice, and admitted that there could have been a mistake in the assessment, due to the wrong figures given by the 1st respondent, and placing on record the above, the Commissioner (Appeals) has observed that excess amount of duty, has been collected, on account of wrong freight amount, being included in CIF value. Admittedly, even according to the Commissioner (Appeals), excess duty collection, has arisen due to typographical error, on the part of the supplier and that therefore, Section 154 of the Act, is applicable. Appeal dismissed - decided against Revenue. - C.M.A.No.2208 of 2009 - - - Dated:- 11-8-2018 - Mr. S. Manikumar And Mr. Subramoniam Prasad JJ. For the Appellant : Mr.A.P.Srinivas For the Respondent : Mr.P.Sridharan for M/s.Lakshmi Kumar JUDGMENT S. MANIKUMAR, J. Civil Miscellaneous Appeal is directed against the Final Order No.43 of 2009, dated 07.01.2009, on the file of Customs, Excise and Service Tax Appellate Tribunal (CESTAT), So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight from Singapore. Thus the wrong freight figure has been included in the CIF, as seen from the break up figures available on the invoice itself. It is seen that the supplier has admitted to having committed this mistake and they have given a Credit Note for the difference involved. The Appraiser who was present in the personal hearing was shown the split values appearing in the invoice and has admitted that there could have been a mistake in the assessment, which was due to the wrong figures given by the appellant. Thus an excess amount of duty has been collected on account of the wrong freight amount being included in the CIF value. 7. It is however seen from the copy of the bill of entry that the said assessment was a provisional one, i.e. made provisional pending finalization of the Special Valuation Branch investigation on the value of goods supplied by the supplier to the appellants, who are related parties in terms of Section 14 of the Customs Act, 62 and the Valuation Rules. Assessment means determination of the tax liability as set out by the legislature, in the Act provided for the same. The Executive cannot levy tax; it can only collect tax as provided for by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SSIONER OF CUSTOMS, KHAVA SHEVA 2004 (170) E.L.T. 309 (Tri. - Mumbai) it was held; 'Once an assessment is provisional it is provisional for all purposes not necessarily provisional in respect of the particular ground considered at the time of provisional assessment' 9. Therefore the issue is still live and the provisional assessment has not yet been finalized. Hence there can be no question of re-assessing the bill of entry provisionally again and then finalizing it again once the valuation issue has been decided. Therefore although the contentions of the appellant may well be correct, the appeal for refund of the same and for re assessing the bill of entry taking the lower freight figure is premature. The appellants may therefore await the determination of value by the SVB, and thereafter, they may bring the above issue to the notice of the department for reduction in the excess duty-paid and file a refund claim if found eligible for the same. 10. In view of the above discussion, I dismiss the appeal as pre mature. The case is disposed off as above. 4. Being aggrieved by the dismissal of the appeal, as premature, the 1st respondent has filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and directed the authorities to permit the amendment of the Bills of Entry sought. I find that the appellants have rightly relied on the decision of the Tribunal in the case of CC, Mangalore v. Elf Gas India (P) Ltd., - 2006 (77) RLT 388, in support of the plea that no legal provision barred the appellants from seeking remedy by filing an appeal against a provisional assessment. I find that in a case of conspicuous short payment or excess payment of duty by mistake outside the dispute leading to provisional assessment, it Will be legal and proper for the department to recover the short paid duty or the assessee seeking refund of the excess duty during provisional assessment. In either case the parties cannot be held to suffer prejudice. The assessee has to pay interest for short levy for the delay in making good the same with reference to the date of clearance of the goods. Revenue cannot claim any right to retain the excess amount paid by error.4.1 Section 154 of the Act reads as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerical mistakes (2) arithmetical mistakes (3) errors arising from accidental slips and (4) errors arising from accidental omissions. If any one of the above types of errors has crept in, then the corrective power mentioned in the section can justifiably be used. In this case, the error happened due to the omission to know of the new rates of import duty which has resulted in the assessment made at the first instance. When the error was brought to the notice of the authorities they corrected it and imposed a duty of ₹ 11,99,211/- in accordance with the rate applicable to the goods. The principle underlying in Section 154 of the Act is that records relating to customs duty are maintained properly and correctly and that such records should represent the correct state of affairs. Almost a similar power can be found conferred on the Civil Court by Section 152 of the Code of Civil Procedure. All the four categories of errors enumerated by us above are mentioned in Section 152 CPC also. 8. In Commissioner of Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd., reported in 2008 (230) ELT 385 (S.C.), Honble Apex Court held that an error apparent would mean that an err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps/errors is concerned. On making of such correction under Section 154 of the Act, the consequential return of amount of duty of customs, would be available to an importer. 12. Admittedly, even according to the Commissioner (Appeals), excess duty collection, has arisen due to typographical error, on the part of the supplier and that therefore, Section 154 of the Act, is applicable. Section 154 of the Customs Act, 1962, postulates the intention of the legislature, and any correction could be made at any time and therefore, there is no need for preferring any separate appeal to the effect, corrections in the decision or the claim for refund. Section 27 of the Act does not provide for denial of refund on any such hypothetical conclusions. Tribunal has held that grant of refund arising out of such rectification, shall be subject to the provisions of Section 27(2) of the Act, which prescribes the test of unjust enrichment. 13. Upon considering the above provisions in the Customs Act, 1962 and the submissions of the learned counsel for the parties, we do not find that there is any manifest illegality or irregularity in the order impugned in the instant Civil Miscellaneous Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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