TMI Blog2008 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (T) Shri R.K. Verma, DR, for the Appellant. Shri R.K. Tiwary, Advocate, for the Respondent. [Order per Justice S.N. Jha, President]. - This appeal by the Revenue has come up for hearing on the point of condonation of delay. The brief facts are that the copy of the impugned order of the Commissioner (Appeals) was received in the Commissionerate on 08-02-2005. The period of limitation for filing appeal in the Tribunal being three months, the appeal could be filed by 7-5-2005. It was filed 13 days after expiry of the limitation on 20-5-2005. 2. The objection of the learned Counsel for the respondent is that the appeal could be filed along with condonation of delay application. In the instant case it was filed after inord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed within time allowed. Reliance was also placed on CCE, Bhopal v. Narmada Gilatine Ltd., 2005 (190) E.L.T 104 (Tri.-Del.), in which, on facts, it was held by a Single Member Bench of the Tribunal that there was no sufficient cause for not filing appeal within the period of limitation. On behalf of the Department, on the other hand, reliance was placed on a decision of Supreme Court in State of Nagaland v. Lipok AO - 2005 (1 E.L.T 337 (S.C.) in which it was held that public interest may suffer if appeal is dismissed merely on the ground of some delay. We are of the view that the decisions relied upon on behalf of the respondent are not applicable in the instant case. We are satisfied that the delay in filing the appeal was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which is an altogether different commodity falling under Chapter 62 of the Customs Tariff as against Cutting Tools falling under Chapter 82 of the Tariff. It may also be mentioned that while Cutting Tools are leviable to the customs duty @ 25% ad valorem, on Textile Garments duty @ 25% or Rs. 285/- per piece whichever is higher is leviable. Since respondent had mentioned Sl. No. 281 in stead of 337 in the bill of entry, the duty liability was assessed at Rs. 1,85,606/- @ Rs. 285/- per piece, being higher than @ 25%. The case of the respondent is that had duty been worked out @ 25%, the duty liability would have worked out to Rs. 80,606/-. In other words, excess of Rs. 1,05,000/- was charged and paid by the respondent. 8. In these fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the decisions of the Apex Court in Flock India (supra) and Priya Blue Industries Ltd. v. CC, Ahmedabad, 2004 (172) E.L.T. 145 (S.C.), even where the assessment of duty was wrong, without challenging the same in appeal, the assessee is not entitled to claim refund. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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