Case Law Details
Insecticides India Limited Vs C.C. Jamnagar (Prev) (CESTAT Ahmedabad)
The point of dispute is as to whether before filing the refund claim of the excess duty paid due to errors / mistakes, the assessment order was required to be challenged. I find that this very issue had been dealt with by the Tribunal in the cases of Tata Iron & Steel Co. Ltd. v. CC (Port), Kolkata (supra) 2006 (202) E.L.T. 719 (Tri. – Kolkata) = 2008 (10) S.T.R. 515 (Tri. – Kolkata and Celcius Refrigeration Pvt. Ltd. v. CC, New Delhi (supra), 2007 (213) E.L.T. 364 (Tri. – Del.) wherein the Tribunal has held that mention of wrong currency in the bill of entry as the application of wrong exchange rate is a clerical mistake and when on account of such clerical error a higher amount of duty has been paid the re-assessment is not required before filing of refund claim, as the clerical mistake can be corrected in terms of the provisions of Section 154 of the Customs Act, 1962.
Moreover, in the present case the payment of anti dumping duty is not due to assessment or reassessment of Bills of entry but merely by a letter from the department, therefore there is nothing in the bills of entry to challenge. Even the amount collected thru a letter by the department was also not adjudicated by due process of law such as issuance of show cause notice and adjudication thereof, for this reason also there is no need to file any appeal in order to claim the refund of anti dumping duty paid by the appellant. I am therefore of the view that before filing of the refund, it was not required for the appellant to challenge the assessment order and, as such, the judgment of the Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) (supra) is not applicable to the facts of this case, and therefore, the impugned order upholding the rejection of the refund claim on this ground is not sustainable and is liable to be set aside.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved in the present appeal is that whether the refund claim of the appellant have been rightly rejected on the ground that Appellant had not challenged the assessment of Bills of Entry.
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