VOLVO INDIA PVT. LTD. Vs. CC

JUDGEMENT

(1.) M /s. Volvo India Pvt. Ltd., Bangalore (Volvo), imports automobile components through Chennai Port. The assessment of these consignments is made in terms of Section 18 of the Customs Act (the Act) pending completion of the investigation by the Special Valuation Branch (SVB) into the nature of the transactions between the supplier and the appellants. The appellants cleared a consignment of automobile components under the Bill of Entry No. 985545 dated 22.03.06. The supplier had put an extra 'zero' by mistake in the figure representing freight in the related invoice dated 10.03.06. The Bill of Entry was assessed in accordance with the declarations including the incorrect declaration regarding the freight amount. The assessee paid the duty assessed. The importer pointed out the mistake to the supplier and the supplier issued a certificate dated 06.04.06, clarifying the error and also issued credit note in favor of Volvo for the excess freight charged in the invoice. The assessee sought permission of the authorities to correct the error in the Bill of Entry in terms of Section 154 of the Act and refund of the excess duty paid of Rs. 3,79,637/ -. The lower authorities denied the permission. In the impugned order, the Commissioner (A) held that the assessee could claim refund of the excess duty paid erroneously only on finalization of the provisional assessment. The claim for the refund was therefore premature. Hence the instant appeal by Volvo against that order.

(2.) THE Ld. Counsel for the appellants relies on a decision of this Tribunal reported in the case of CC, New Delhi v. Hero Honda Motors Ltd., 2008 (227) ELT 482, in support of the claim that errors and accidental slips committed by the importer could be corrected under the provisions of Section 154 of the Act.

(3.) ON a careful consideration of the facts of the case and the submissions by both sides, I find that the lower appellate authority had denied the claim for refund of the excess duty paid erroneously on the sole ground that the assessment of the subject consignment was provisional. There is consensus (sic) between parties as regards the excess payment of the amount claimed. The Commissioner (Appeals) held that refund of the excess duty paid by mistake could not be allowed before finalizing the provisional assessment. I find that in the Brakes India Ltd. v. CC, Chennai case, the Tribunal held that the right of an importer to seek amendments in the Bills of Entry under Section 149 of the Act was not altered by the judgments of the apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. , (supra) and Priya Blue Industries Ltd. v. CC (Preventive) . In that case facts were that the appellants had sought amendment of several Bills of Entry enabling them to pay the CVD in cash. The liability to CVD had been met by adjustment of credit in the DEPB book at the time of clearance of the goods involved. Rejecting the argument of the revenue that the assessment of the Bills of Entry involved had become final and that the same could be modified only by recourse to appeal proceedings or review under Section 28 of the Act as held by the Apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. , the Tribunal held that the right of an importer to seek amendments in the Bills of Entry under Section 149 of the Act was not lost or whittled down by the judgments of the apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. , (supra) and Priya Blue Industries Ltd. v. CC (Preventive) and directed the authorities to permit the amendment of the Bills of Entry sought. I find that the appellants have rightly relied on the decision of the Tribunal in the case of CC, Mangalore v. Elf Gas India (P) Ltd., 2006 (77) RLT 388, in support of the plea that no legal provision baited the appellants from seeking remedy by filing an appeal against a provisional assessment. I find that in a case of conspicuous short payment or excess payment of duty by mistake outside the dispute leading to provisional assessment, it will be legal and proper for the department to recover the short paid duty or the assessee seeking refund of the excess duty during provisional assessment. In either case the parties cannot be held to suffer prejudice. The assessee has to pay interest for short levy for the delay in making good the same with reference to the date of clearance of the goods. Revenue cannot claim any right to retain the excess amount paid by error.