TMI Blog2009 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 130 of the Customs Act, 1962 (for short the Act) has been filed by the appellant importer/assessee seeking quashing of the order dated 5-2-2009 (Annexure A/6) passed by Customs Excise and Service Tax Appellate Tribunal, New Delhi (for short the Tribunal) whereby the claim of refund on excess duty paid has been declined. 2. The facts emerging out of the present appeal are that appellant importer/assessee imported heavy melting scrap under Custom Tariff Heading No. 7204.90 of the Customs Tariff Act. Six bills of entry in respect of said import were assessed to duty on the basis of respective invoices and appellant importer/assessee deposited duty on 7-8-2007. However, on physical examination and weighment by the Assessing Officer on 28-8-2007, the actual weight of the consignment was found short to the tune of 15.09 MT. Accordingly, the appellant-importer/assessee filed 6 refund claims on 3-11-2007 under Section 27 of the Act in respect of six bills of entry as the actual weight of imported material was less than the declared weight and appellant-importer/assessee had paid excess duty. The Assistant Commissioner of Customs allowed the said refund application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the scheme of the Act and provisions of Sections 17, 27 and 149 and admitted fact that the excess duty on the imported goods had been paid and collected, the claim of the appellant for refund of excess duty cannot be declined on the basis that no challenge was made to the assessment order passed by the Assessing Officer which had attained finality or the Assessing Officer/Assistant Commissioner himself could not decide the refund matter. 7. On the other hand learned counsel for the respondent-revenue has submitted that in view of the assessment order having become final no claim for refund could have been entertained. Reliance was placed on Priya Blue and Flock (India)'s case (supra). 8. Before proceeding further in the matter, it would be appropriate to refer to relevant provisions of Sections 17, 27 and 149 of the Act, extracted hereunder:- "17. Assessment of duty. - (1) After an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 the imported goods or the export goods, as the case may be, or such part thereof, as may be necessary may, without undue delay, be examined and tested by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person. Provided that xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Provided further xxxxxxxxxxxxxxxxxxxxxxxxxxxx Provided also that xxxxxxxxxxxxxxxxxxxxxxxxxxx Provided also that xxxxxxxxxxxxxxxxxxxxxx (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty, paid by the importer or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person, (b) the duty and interest, if any, paid on such duty, on imports made by an individual for his personal use; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained on the basis of statements made in the Bills of Entry and the documents produced along with it subject to re-assessment by the Assessing Officer after examination and testing of the goods. It is thus, evident from the scheme of the Act that the duty can be paid only on account of the assessment by the Assessing Officer either on the basis of the statement in the Bill of Entry and on physical examination of the goods or on the basis of particulars of the goods in the Bill of Entry subject to re-assessment of duty under certain situation (when there is a discrepancy in duty leviable with regard to goods imported/assessed between the Bill of Entry and examination report) before clearance of goods under Section 47 of the Act. In any case, the duty leviable and collected is to be in accordance with law and on the goods factually imported. 12. A bare perusal of clause (i) of sub-section (1) of Section 27 read with clause (b) of the Act, extracted hereinabove, reveals that any person before expiry of six months from the date of payment of duty, can claim refund of any excess duty and interest, if any, paid by him in pursuance of an order of assessment. It is further discernible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Priya Blue and Flock (India)'s case (supra). The question posed before the Court was "as to whether in the absence of impugning the original order of assessment by preferring a statutory appeal which was available, should the Court ought to exercise its extraordinary jurisdiction under Article 226 of the Constitution". The Division Bench by placing reliance on the ratio of judgment in the case of State of U.P. v. Mohammad Nooh, AIR 1958 SC 86 and reiterated in Champalal Binani v. Commissioner of Income Tax, West Bengal and others, 76 ITR 692 (SC) held that wherever there has been breach of fundamental principles of justice, though statutory remedy of appeal may be available, then the Court would certainly not hesitate to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The Hon'ble Division Bench in para 8 of its judgment held as under:- "8. In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notification, lithe Petitioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases is not applicable to the facts of the present case as herein there is no dispute regarding the duty It is a case of improper exercise without the authority of law by the Assessing Officer/Assistant Commissioner. In the facts of the instant case, there being no dispute regarding duty leviable on examination of goods, it was the responsibility of the assessing/proper officer to re-assess (in view of provisions of sub-section (4) of Section 17) and correctly determine the duty leviable in accordance with law before clearing the goods for home consumption. He having failed to do so, had caused great injustice to the appellant / importer and it was open for the importer/assessee to file an application for refund under Section 27 of the Act without taking recourse to filing of an appeal. The competent authority under Section 27 of the Act, subject to fulfilment of the conditions laid therein, was fully competent to exercise its discretion and in view of provisions of Section 149 of the Act permit the amendment of Bill of Entry, on the basis of documentary evidence (examination report Ex. A/1), which was in existence at the time the goods were cleared, and order refund of excess du ..... 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