ABB LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The issue involved in these two appeals, filed by M/s. ABB Ltd., is whether the refund of duty claimed by them is to be sanctioned to them.

(2.) Shri R. Parthasarthy, learned Advocate, submitted that the Appellants have imported certain parts and components for use in the manufacture of transformers from Sweden; that though the invoice value was mentioned in Sweden Krones, they erroneously applied exchange rate of Swiss Francs which resulted in payment of duty in excess; that though the refund was sanctioned to them, the Adjudicating Authority directed the amount of refund to be credited to the Consumer Welfare Fund; that Commissioner (Appeals) also under the impugned order has rejected their appeals on the ground that the order of assessment made by proper officer stands as no correction as required by Section 154 of the Customs Act has been made nor any Appeal was filed. The learned Advocate, further, submitted that the appellants have shown the excess customs duty paid by them as sundry recoverable in their books of accounts; that thus the said excess duty amount had not been debited to the Profit and Loss Account and had also not been included in the costing of the finished products; that as such burden of excess duty has not been passed on to the customers. In this regard, he referred to the Certificate dated 7 -3 -2003 given by M/s. Jayesh Desai and Co., Chartered Accountants and relied upon the decision in the case of Hero Honda Motors Ltd. v. CCE, 2002 (126) E.L.T. 1014 wherein the Tribunal, relying upon the Chartered Accountant's Certificate and Balance Sheet has held that the excess duty shown as recoverable in the Balance Sheet indicates that the Appellants had not passed on the incidence of duty to the Customers. He finally submitted that the Commissioner (Appeals) has rejected their Appeal on a new ground that they had not filed any application for correction of clerical mistake; that thus the impugned order is. beyond the scope of the proceedings in the present matters; that since the Deputy Commissioner who had adjudicated the matter has satisfied himself that excess amount has been paid, it has been accepted that due to clerical mistake excess amount of duty was paid by the Appellants; that the position that excess duty was paid has become final which was not challenged by the Department. He relied upon the decision in Keshari Steels v. C.C., Bombay, 2000 (115) E.L.T. 320 (Bom.) wherein the Bombay High Court has held that Section 154 specifically provides for correction of clerical or arithmetical mistake in any decision or Order passed by an officer of Customs under the Act and once that is corrected, the petitioner is entitled to have refund of the amount which is paid due to an arithmetical error. He mentioned that the SLP filed by the Revenue against the said judgment of the Bombay High Court has been dismissed by the Supreme Court on merit as reported in 2000 (121) E.L.T. A139.

(3.) Countering the arguments, Shri S.M. Tata, learned Senior Departmental Representative, submitted that the Appellants have not challenged the assessment in Appeal and thus they can not claim the refund of duty; that since the assessment has attained finality, the refund claim is not maintainable. He relied upon the decision in the case of Priya Blue Industries Ltd. v. CC (P), 2004 (96) ECC 217 S.C. wherein it has been held that once an order of assessment is passed the duty would be payable as per that order and unless that order of assessment has been reversed and/or nullified in an Appeal, that order stands. He also contended that the bar of unjust enrichment would be applicable to the claim for refund of duty.