Per P. Karthikeyan : After hearing both parties on the early hearing application filed by M/s. Senka Carbon Pvt. Ltd., the appeal itself is taken up for final disposal at the request of the parties.

2. The appellants had imported two consignments of Calcium Carbide from China vide Bills of Entry No. 619654/23.04.2004 and 624060/05.05.04, under DEPB scheme and paid anti-dumping duty of Rs. 65,510/- and Rs. 64,562/- respectively. When they came to know that the anti-dumping duty levied was not payable, they sought refund of the said amounts, which was rejected by the Dy. Commissioner of Customs (Refunds). On appeal against the said order covering both the refund claims, the Commissioner (Appeals) passed the impugned order upholding the order of the lower authority on the ground that the refund claim had been filed without challenging the erroneous assessment made on the respective Bills of Entry. He found that once an order of assessment was passed, the duty would be payable as per that order. Unless that order of assessment had been reviewed under Section 28 and/or modified in appeal that order stands. To arrive at the above finding, he relied on the ratio of the Apex Court decision in Priya Blue Industries Vs. Commissioner of Customs - 2004 (64) RLT 321 (SC)=2004 (172) ELT 145 (S.C.). He also derived support from the following observation of the Apex Court in CCE Vs. Flock India - 2000 (40) RLT 131 (SC)=2000 (120) ELT 285, where in it was held that:

"Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order."

Canvassing the prayers in the appeal, the Ld. Counsel submits that they happened to pay the anti-dumping duty not due, owing to erroneous assessment of the Bills of Entry. Once the imported goods were correctly declared in the Bills of Entry, it was the duty of the proper officer of customs to assess the duty due. Therefore, if the assessing officer committed a mistake, the same should be corrected and if any excess amount was collected pursuant to wrong assessment, that amount should be refunded. There was no need for the importer to challenge the assessment to obtain the refund of the excess amount paid.

3. The Ld. Counsel appearing on behalf of the appellants relies on the decision of this Bench of the Tribunal in IP Rings Ltd. Vs. CC (AIR), Chennai - F.O. No. 520/2006 dt. 19.06.2006, wherein the Tribunal had in a similar case of erroneous assessment and collection of higher amount of duty, directed the assessing officer to re-assess the Bill of Entry under Section 17 (4) of the Act, after allowing the assessee to amend the Bills of Entry under Section 149 of the Customs Act'62.

4. The Ld. SDR fairly concedes that in view of the various decisions of the Tribunal, the appellants could approach the department for re-assessment of the Bills of Entry to determine the correct amount of duty due by amending the Bills of Entry in terms of Section 149 of the Customs Act.

5. After hearing both sides, I find that Section 149 provides for amendment of Bills of Entry even after the clearance of goods provided the amendment is made on the basis of documents that were in existence at the time the goods were cleared. It is open to the assessee to approach the department for re-assessment of the impugned Bills of Entry in accordance with law. This is the ratio of the IP Rings case cited by the appellants. The appellants will be eligible for consequential refund, if any, subject to the test of unjust enrichment.