TMI Blog2022 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of Iron Ore Fines, which would include the weight of the moisture in it. The Commissioner (Appeals) had categorically observed that the assessing officer had assessed the duty not on the basis of gross weight (including the weight of the moisture), but had determined the Fe content on dry wet basis. This itself clearly indicates that the order of Assistant Commissioner was not in order and that the same was rectifiable within the meaning of Section 154 ibid. The correct Fe content was required to be determined on the basis of the guidelines contained in the judgement of the Hon ble Apex Court in the case of Gangadhar Narsingdas Aggarwal - The same having not been done here, in the case on hand, it is clear that the order of First Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared at more than 62% ; that the Revenue assessed to duty at Rs.300/- per MT as was leviable ; that the appellant requested the Adjudicating Authority/Assistant Commissioner for rectification/correction of the error ; that the Deputy Commissioner of Customs (Exports) vide letter dated 04.06.2010 intimated the appellant that there was no clerical or arithmetical error in the assessment of the Shipping Bills and hence, the request of the appellant was not covered under Section 154 of the Customs Act, 1962 ; that thereafter, an appeal was filed before the First Appellate Authority, who vide Order-in-Appeal No.Kol/Cus/CKP/285/2010 dated 06.10.2010, set aside the intimation/order of the Deputy Commissioner dated 04.06.2010 and further directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the weight of the moisture) and hereby determined the Fe content but by taking the Fe content on the dry wet basis of the Iron Ore Fines. This is contrary to the ratio of the Supreme Court s decision in the case of Gangadhar Narsindas Agarwal (supra). (c) Assessment should hus be done by first determining the Fe content as above based on the ratio of Supreme Court s decision and thereafter duty leviable should be determined. (d) The Lower Authority did not make any decision whether the issue in question is covered under by error arising from accidental slips and errors arising from accidental omissions. (e) In terms of the Court and Tribunal s decision, where assessment have not been done properly, the same be rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be determined on the basis of the guidelines contained in the judgement of the Hon ble Apex Court in the case of Gangadhar Narsingdas Aggarwal (supra). The same having not been done here, in the case on hand, it is clear to us that the order of First Appellate Authority dated 06.10.2010 is correct. It is the settled position of law that not following the order of the Hon ble High Court or the Hon ble Apex Court would amount to mistake/error which is rectifiable under the provisions of Section 154 ibid. It is strange that in the second round and in the impugned order, the First Appellate Authority has ignored its own earlier order which has attained finality and thereby sustained a tangential order of lower authority. 7. Further, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
