SESA GOA LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) IN these appeals filed by the assessee, the short question to be considered is whether the refund claims filed by them are admissible on merits. The assessee had imported three consignments of coking coal during January to March 2007. The relevant bills of entry were, at their instance, provisionally assessed to additional duty of customs (CVD) under Section 3 of the Customs Tariff Act. At that stage, the assessee submitted that, as per the Hon'ble Supreme Court's judgment in the case of CCE, Bhubaneshwar -I v. Tata Iron and Steel Co. Ltd. : 2003 (154) ELT 343 (SC), coking coal was not to be considered to be manufactured in India and, therefore, no CVD was leviable on like goods when imported into India. Significantly, this point was recorded in the bills of entry. Later on, when the matters were taken up for finalisation of assessment, the assessing authority chose to finalise the provisional assessments without any change. Meanwhile, the duty assessed was paid under protest. Later on, the assessee filed refund claims, which were sanctioned by the proper officer of customs on the ground that CVD was not leviable on the goods imported by the assessee. The refund -sanctioning orders were reviewed and accordingly appeals of the department were filed with the Commissioner (Appeals). The appellate authority allowed those appeals by setting aside the refund -sanctioning orders. Hence the present appeals of the assessee.

(2.) THE learned Counsel for the appellant submits that the lower appellate authority erred in applying the ratio of the Supreme Court's judgment in Priya Blue Industries Ltd. v. CC : 2004 (172) ELT 145 (SC) to the facts of the case on hand. According to the learned Counsel, the assessment orders are not to be considered appealable. According to him, they should be considered to be rectifiable under Section 154 of the Customs Act. It is argued that the assessing authority happened to finalise the assessments by omitting to consider the Supreme Court's judgment in TISCO case. Being a case of mere slip or omission on the part of the assessing authority, that authority ought to have corrected the mistake which was pointed out through the refund claims. On this basis, it is argued that this case requires to be handled in the light of the Tribunal's decision in Bennet Coleman & Co. Ltd. v. CC, Bangalore : 2008 (232) ELT 367 (Tri. -Bang), wherein non -consideration of an exemption notification by the assessing authority was treated as an omission for purposes of Section 154 of the Customs Act and, on this basis, a claim for refund of the duty paid by the assessee was allowed by the Bench after distinguishing the case on hand from the case of Priya Blue Industries Ltd. (supra) etc. On the other hand, the learned SDR refers to the apex court's judgment in a review petition filed by Priya Blue Industries Ltd. vide : 2004 (172) ELT 145 (SC) and submits that the original authority could not have sat in judgment over the finalisation of assessments made by the competent officer of customs. The assessments were not appealed against. In the circumstances, according to the SDR, the ruling in Priya Blue Industries (supra) is squarely applicable to the instant case.

(3.) THE learned Counsel has strenuously argued that this case fell within the ambit of Section 154 of the Customs Act. I do not agree. What is sought to be corrected under Section 154 is an arithmetical mistake in an order or decision of the Board or an officer of customs or a mistake arising out of a slip or omission of the authority passing the order or taking the decision. Such mistakes can be corrected by the authority concerned at any time either suo moto or when pointed out by the aggrieved party. I have already found that the claim of the assessee for exemption from CVD on the strength of the Supreme Court's judgment in TISCO case was expressly noted in the bills of entry. That claim, however, was not considered by the assessing authority at the stage of provisional assessments or even at the later stage of finalisation of assessments. It can hardly be said to be a case of arithmetical error, nor of slip/omission. Section 154 of the Customs Act, therefore, cannot be pressed into service in the instant case. For this very reason, the Tribunal's decision cited by the learned Counsel is inapplicable. This case is squarely covered by the ratio of the apex court's decision in Priya Blue Industries (supra).