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Customs – Cestat Kolkata: Mentioning wrong HSN code in Bill of entry was an accidental slip, leading to erroneous collection of anti-dumping duty - There is no need to file any appeal in order to claim its refund as it is a clerical mistake covered under Section 154 – Appeal allowed [Order attached]

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Admin

02-Nov-2022 02:13:13

Order date – 01 November 2022

Key Pointers -

The Appellant, Insecticides India Limited, imported “Phosphorus Acid” and declared in the Bills of Entry under CTH 28092010.
On post clearance Audit of Bills of Entry, it was found that goods imported under CTH 28092010 attract anti-dumping duty vide Notification No. 33/2013-CUS (ADD) dated 31.12.2013. Therefore, the differential duty along with interest was demanded by the Department.
The issue is whether Phosphorus Acid fall under CTH 28092010 attract anti-dumping duty?
The Tribunal finds that the appellant in their normal course of business imported “Phosphorous Acid” and inadvertently mentioned HSN code as 28092010 instead of correct HSN code of 28111990. However description of goods was correctly mentioned as “Phosphorous Acid” by the Appellant on all the import documents and the same was not disputed by the department at the time of import. Also, Anti-dumping duty is not was payable on them.
It is also found that the mention of wrong HSN code 28092010 instead of correct HSN code 28111990 in Bill of entry was an accidental slip and leading to erroneous collection of anti-dumping duty. The tribunal is in the view that the decisions of Supreme Court relied upon on behalf of the Revenue cannot be applied in cases covered by Section 154 of the Act. And where refund is the logical consequence of correction of some clerical or accidental error under Section 154, the person should not be denied the benefit merely because he did not prefer appeal against the assessment order.
Further the present case the payment of anti-dumping duty is not due to assessment or reassessment of Bills of entry but merely by a letter from the department, therefore there is nothing in the bills of entry to challenge. Even the amount collected thru a letter by the department was also not adjudicated by due process of law such as issuance of show cause notice and adjudication thereof, for this reason also there is no need to file any appeal in order to claim the refund of anti-dumping duty paid by the appellant
Hence, it is held that before filing of the refund, it was not required for the appellant to challenge the assessment order and therefore, the impugned order upholding the rejection of the refund claim on this ground is not sustainable and is liable to be set aside.