EXCEL CROPCARE LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) AFTER hearing both sides, we find that the appellant filed Bill of Entry in respect of the imported goods and paid duty @ 15%. This was in December, 2004. However, subsequently, after a gap of two years, they realized that correct rate of duty was 10% in terms of Notification No. 103/2004 and they have paid extra duty. They accordingly, approached Revenue for rectifying the said mistake in Bill of Entry, in terms of provisions of Section 154 of Customs Act, 1962. The said request was denied by the authorities below after observing that Section 154 only permits correction of mathematical or clerical error, the benefit of notification cannot be extended to the importer subsequent to the payment of duty in as much as no appeal was filed against the Bill of Entry.

(2.) WE fully agree with the above contention of the Revenue. The issue stands decided by the Honble Supreme Court in case of Priya Blue Industries - 2004 (172) E.L.T. 145 (S.C.), laying down that refund claim contrary to the assessment order is not maintainable without the order of the assessment having been modified in appeal. Admittedly, in the present case, no appeal stands filed against the assessment in terms of Bill of Entry originally filed. Seeking rectification, in the Bill of Entry, amounts to modification of the same without challenging the said assessment before the higher adjudicating authority. Section 154 relied and referred to by the appellant only permits rectification in clerical or mathematical arena. We note that the assessments were finalized and it is not a case where importer realized the mistake immediately after final Bill of Entry or before the assessment. Once the assessments have been finalized, only option available to the importer is to challenge the same before the higher appellate forum and get the same set aside. This is the ratio of Honble Supreme Courts decision in case of Priya Blue Industries as also Larger Benchs decision of the Tribunal in case of CC (Imp), Nhava Sheva v. Eurotex Industries and Exports Ltd. 2007 (216) E.L.T. 137 (Tri. -LB) = 2007 -TIOL -1184 -CESTAT -MUM.

(3.) THE learned Advocate relies upon the Honble Kerala High Court in case of Aluminum Industries Ltd. - 1996 (83) E.L.T. 41 (Ker.), allowing rectification in Bill of Entry under the similar circumstances in terms of Section 154 of Customs Act, 1962, is not appropriate in as much as the said judgment is prior to the declaration of the law by the Honble Supreme Court in case of Priya Blue Industries.