ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the order-in-appeal dated 10-6-05 wherein the appellant’s appeal against the order-in-original rejecting the refund claim has been dismissed.
2. The relevant facts that arise for consideration are that the appellant filed for refund claim for Rs. 7,65,129/- on 18-10-04 on the ground that the duty for the goods covered under Invoice No. 1025263, dated 15-10-03 was paid twice by the appellant. The refund claim was rejected by the adjudicating authority on the ground that the duty was paid on 14-11-03 and on 23-10-05 and refund claim having been filed on 18-10-04 i.e. after the expiry of six months, hence refund claim is time barred. On an appeal, the Commissioner (Appeals) also upheld the same view and dismissed the appeal on the question of time barred. Hence this appeal.
3. Ld. Advocate appearing for the appellants submits that it is an admitted fact that the duty paid second time i.e. on 14-11-03 was a mistake and not liable to be paid by them. He submits that the Deptt. itself has admitted this fact vide their letter dated 13-4-05. It is also his submission that it is not in dispute, that when the duty was paid second time on the quantity of the watches covered under Invoice No. 1025263, which were not available there was a shortage of 164 numbers of watches, which is certified by the authorities. He relies upon the Larger Bench decision in the case of Hindustan Fertilizer Corporation v. Collector of Customs reported at for the proposition that Asstt. Collector of Customs would have corrected the error under Section 154 and granted the relief to them.
4. Ld. DR on the other hand submits that the rejection of the refund claim by both the authorities is correct and there is no error as refund claim has been preferred by the appellant beyond the period of six months as provided under Section 27. He also submitted that the provisions of Section 154 cannot be invoked to grant refund even if the amount of the duty is paid twice despite of the fact that this is admitted by the Deptt.
5. Considered the submissions made by both the sides and perused the records. I find that it is not disputed that the appellants have paid the amount of duty of Rs. 7,65,129/- twice. It is also not disputed that when the second time duty was paid by the appellants, the authorities did not find the goods which were sought to be cleared and they issued a short receipt certificate to the appellants. I find that the Asstt. Collector of Customs vide his letter dated 13-4-05 has intimated the appellants as under:
It is also observed that B/E No. 571161, dated 20-10-03 was also filed earlier by the same importer vide Invoice No. 1025263, dated 15-10-03 wherein 164 pieces of Wrist Watches assorted types were imported. In this case duty amounting to Rs. 765129 was deposited vide TR-6 Challan No. 97752169, dated 23-10-03. Further as per examination report on the B/E No. 584308, dated 12-11-03, it is observed that 164 pieces of Wrist Watches were found short. This quantity of 164 Wrist Watches corresponds to Invoice No. 1025263, dt. 15-10-03 pertaining to Bill of Entry No. 571161/20-10-03 as discussed above.
Thus, as per the documents submitted by you, it appear that custom duty covered under Invoice No. 1025263, dated 15-10-03 has been deposited twice. First time vide B/E No. 571161, dated 20-10-03 amounting to Rs. 765129/- and then again vide B/E No. 584308, dated 12-11-03 amounting to Rs. 766153/-. Thus there is an excess payment of Duty Rs. 766153/- deposited by you vide B/E No. 584308, dated 12-11-03 as discussed above.
Since EDI B/E cannot be amended/corrected at this stage as out of charge has already been given, this certificate is being issued for your reference.
From the above letter, it is very clear that Deptt. is admitting the fact that the duty has been deposited twice by the appellant.
6. Provisions of Section 154 deals with these kinds of problems. Section 154 of the Customs Act, 1962 reads as under:
Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be.
From the above reproduced provisions of Section 154, it can be seen that the proper officer of the Customs on his own or being pointing out can correct the arithmetical mistake due to accidental slip or omission. The provisions also do not stipulate a specific time period for doing such corrections. The precise question as in this case i.e. whether the refund can be granted under Section 154 after the correction by the proper officer was before the Larger Bench in the case of Hindustan Fertilizer Corporation (supra) wherein the Tribunal held at Para 49:
49. The next question that arises for decision is whether Section 154 provides only for collection of errors, or whether it also provides for relief consequent to such correction. If the argument that relief flowing as a result of correction under Section 154 cannot be granted is to be accepted, then the provisions of Section 154 would be rendered nugatory in all cases in which errors are traced after 6 months from the date of payment of duty. This could not have been the intention of the Legislature whilst enacting Section 154. A power vested in an authority to correct a mistake or error includes a power to grant consequential relief, if any.
7. It can be seen that the case of the appellant is squarely covered by the ratio of the decision of the Larger Bench of the Tribunal. In view of the above circumstances, as the appellant’s case is covered by the Larger Bench and as this case was not produced before the adjudicating authority by the appellants, the appeal is allowed by way of remand to the original adjudicating authority to consider the refund claim of the appellants in the light of the above decision and in the light of the directions for applying the provisions of Section 154 to this case. The adjudicating authority will grant an opportunity of personal after hearing to the appellants and take on record the evidence that may produced and decide the matter afresh. The appeal is allowed by way of remand to the original adjudicating authority.
(Order dictated in the open Court)