TMI Blog2021 (10) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 20272 of 2020 - Final Order No. 20797/2021 - Dated:- 22-10-2021 - MR. P DINESHA, JUDICIAL MEMBER Smt. Sandhya Sarvode, Advocate for the Appellant Smt. C.V. Savitha, Authorized Representative for the Respondent ORDER The appellants are manufacturers of excisable goods falling under various Chapters of the Central Excise Tariff Act, 1985 and are holders of Central Excise Registration also. The appellants procure several inputs from M/s Kluber Lubrication Munchen KG, Germany, for the use in the manufacture of finished goods in India and accordingly, placed a purchase order for purchase of 600 kgs of P-48, a lubrication preparation, at a unit price of 292.68 EUR per 100 kgs against which, the supplier also raised an invoice dated 20.07.2011 quoting the unit price of 292.68 EUR per kg as against per 100 kgs, resulting in a total value of 1,75,608 EUR as against 1757.30 EUR. 2. It is the case of the appellants that they filed the Bill of Entry dated 25.07.2011 for the clearance of impugned goods and also paid the duty on the value of 1,75,608 EUR as quoted in the invoice dated 20.07.2011 (amounting to ₹ 30,09,958/-). Having noticed the above error durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms (Appeals), Bangalore, and the Commissioner (Appeals) vide Order-in-Appeal No. 247/2018 dated 27.06.2018 disposed of the appeal by holding inter alia that the rejection of refund claim on the grounds of limitation was incorrect; that the Department s view was good for import prior to 08.04.2011; that amendment under Section 154 ibid was nothing but a form of re-assessment, etc. The Commissioner (Appeals) also remanded the matter back to the original authority with a direction to pass appropriate and verify the genuinity of unjust enrichment. This order of the Commissioner (Appeals) has become final now with both the Revenue as well as the appellant having accepted the same. 3. The appellant moved an application dated 03.011.2018 before the Assistant Commissioner (Refund) requesting for refund again with duly supported by documentary evidences also and the Deputy Commissioner (Refund) vide Order-in-Original passed on 16.01.2019 sanctioned the refund as claimed by the appellant. The said authority has also observed in the said Order-in-Original that the Order-in-Appeal No.247 ibid passed by the Commissioner of Customs (Appeals) Bangalore, has been accepted in Review by Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking order has become final and by this order, the Commissioner has virtually shut Revenue s case on all other possible grounds and, if the Revenue was seriously aggrieved, it is this order against which they should have filed appeal if the same was not in order. Having missed the bus, they cannot transfer their wrath against the Commissioner (Appeals), on the order passed as a consequence to his directions by the adjudicating authority. The other argument that the adjudicating authority had already rejected the appeals request for amendment is also baseless since the order was appealed against and the same is non-est in the eye of the law. 7. The Hon ble Supreme Court in the case of ITC Ltd. (Supra) has categorically observed as under: 47 . When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself Supreme Court has clarified that in case any person is aggrieved by an order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. This is because as long as the order is not modified the order remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include section 149 and section 154 of the Customs Act. 18. 23. In Maharashtra Cylinders Private Limited (supra), a Division Bench of this court also reiterated the proposition that unless an order of self-assessment is varied or altered, question of refunding the duty paid on self-assessment does not arise at all. Validity of an assessment cannot be considered while dealing with a refund claim. Therefore, this decision on the face of it is clearly distinguishable and is not at all applicable to the facts of the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerical or arithmetical mistakes or errors in orders due to accidental slip or omission under section 154 thereof is different and distinct from the appellate power exercised under section 128 of the Customs Act. The power of amendment or correction, as the case may be, is vested on the same offer who had passed the initial order or an officer of equivalent rank. On the other hand, appellate jurisdiction is directed to correct decisions or orders passed by an inferior or lower authority. By its very nature an appellate authority is superior to the authority which had passed the order appealed against. 28. In the light of the above, we are of the view that petitioner has made out a case for issuance of a direction to the respondents for correction of the mistake or error in 21 of 22 www.taxguru.in 23.os.wpl.249.20.doc classification of the goods from CTH '85176990' to '85176930' and thereby for amendment of the Bills of Entry. Refusal of the respondents to look into the aforesaid grievance of the respondents is therefore not justified. 29. Accordingly, we direct respondent No.2 to consider the prayer of the petitioner for amendment of the Bills of Entry Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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