TMI Blog2004 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce the evidence that the incidence of duty has not been passed on to any other person and thus, the lower adjudicating authority has held that the doctrine of unjust enrichment is applicable in this case, and this finding of the lower authority has been upheld by the learned Commissioner (Appeals) in the impugned order. 2. The brief facts of the case are that the appellants had filed a claim for refund on the ground of wrong declaration of currency i.e. to say US $ instead of French Francs. They have produced proforma invoice, purchase order in support thereof. He further submits that they have submitted Chartered Accountant Certificate and copies of challans showing supply relating to the same part numbers. The lower authority has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same to be credited in the Consumer Welfare Fund since the appellant failed to produce the evidence of unjust enrichment. It was in this background, the learned Commissioner (Appeals) was also of the opinion that the order passed by the lower authority was legal and proper and he was not inclined to interfere with the order passed by the lower authority and thus rejected their appeal. Aggrieved by the impugned order, the appellants have come in appeal before the Tribunal on the ground that the Commissioner (Appeals) has errored in rejecting the appeal and therefore, the order passed by him is liable to be set aside. They also submitted that the order passed by the Commissioner (Appeals) does not contain any reason whatsoever and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clerical or arithmetical mistake in the order can be done by the proper officer. The learned Advocate also submitted that the provisions of Section 27 are not applicable in their case and the refund should have been suo motu granted to them. In this connection, he relied on the judgment of the CEGAT, East Zonal Bench, Calcutta in the case of Hindustan Fertilizer Corporation v. CC reported in [1993 (63) E.L.T. 648] wherein it was held that the refund arising out of clerical or arithmetical error, wherein excess payment of duty by the importer had been made due to wrong calculation and such arithmetical error can be corrected by the proper officer under the provisions of Section 154 of the Customs Act and the provisions of Section 154 are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. He also submitted that the facts in the judgment rendered by the High Court of Judicature at Bombay in the matter of Keshari Steels v. CC, Bombay, 2002 (115) E.L.T. 320 are distinguishable inasmuch as, for the arithmetical error, the time-limit as prescribed under Section 27 of the Act was applied. He invited my attention to para 2 of the above judgment wherein the application for refund which was filed on 29th July, 1985 was rejected by an order dated 8th August, 1985 on the ground that the refund application was filed beyond the period of time as prescribed under Section 27 of the Act. Not only both the lower authorities but even the appellate Tribunal had dismissed their appeal on the ground that it was beyond the period of six mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the Chartered Accountant Certificate is not supported by relevant sales bills or documents relating to the placing or order and terms of supply; submission of chartered accountant certificate is not sufficient proof to show that burden of duty has not been passed on to any other person. He, therefore, submitted that the impugned order may be sustained and their appeal may be rejected. 6. I have perused the records and heard both the sides. The appellants manufacture JG engines and the gaskets which were imported by them, have been partly used in their production schedule and partly sold to their customers. They had filed a refund claim on ground of wrong declaration of currency i.e. US $ instead of French Francs. Both the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted, to the Consumer Welfare Fund. I am also in agreement with the plea taken by the learned JDR that the facts in the judgment rendered in CEGAT in the matter of Hindustan Fertilizer Corporation v. CC supra and the facts in the judgment of the Hon'ble Bombay High Court in the case of Keshari Steels v. CC [2000 (115) E.L.T. 320] are clearly distinguished to the facts of this case as in those cases, the refund claims were rejected on the ground that the refund claim was filed beyond the period of six months. It was therefore, held that the time-bar as provided under Section 27 of the Act would not be applicable in the case of such arithmetical or clerical errors. Both the lower authorities have suo motu admitted the refund claim and also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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