$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7350/2020 BHAWNA MALHOTRA ...... Petitioner Through: Mr. Rajesh Jain, Advocate with Mr.Ram Kumar Sharma, Mr.Virag Tiwari and Mr.Ramashish, Advocates.

versus UNION OF INDIA & ANR.

...... Respondents Through: Mr.Avnish Singh, Advocate for R-1/UOI.

Mr.Harpreet Singh, Sr. Standing Counsel for R-2. % Date of Decision: 02 nd November, 2020 CORAM: HON'BLE MR. JUSTICE MANMOHAN HON'BLE MR. JUSTICE SANJEEV NARULA J U D G M E N T MANMOHAN, J (Oral):

1. Present writ petition has been filed challenging the order dated 21 st August, 2020 passed by respondent no.2 pursuant to this Court‟s order dated 5 th August, 2020 in W.P (C) 4912/2020. Petitioner prays for reading down Section 128 of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (for short „SVLDRS‟) in the interest of justice and equity and to hold that any clerical or arithmetical error made by an applicant in SVLDRS-1 also falls within the ambit of said Section. Petitioner further prays for a direction to the respondent Committee to allow it to rectify the declaration dated 30 th December, 2019 and consider it as one filed under the „litigation‟ category instead of „voluntary disclosure‟ category and grant consequential benefits.

ARGUMENTS ON BEHALF OF THE PETITIONER

2. Mr. Rajesh Jain, learned counsel for the petitioner states that the respondent has rejected the petitioner‟s rectification application on the ground that Section 128 confers limited powers upon the designated committee and it is not empowered to rectify errors committed by the petitioner/applicant/ declarant/assessee.

3. He emphasis es that the error in the present case was a „clerical‟ error that was apparent on the face of the record and the designated committee was statutorily obliged to rectify the same. He states that if the rectification is carried out, no undue benefit would accrue to the petitioner.

4. He submits that Section 154 of the Customs Act, 1962, which is pari materia to Section 128 of SVLDRS, has been held by Courts to include in its sweep the errors committed by the importer/declarant. In support of his submission, he relies upon judgment of the Madras High Court in CC Chennai Vs. Volvo India (P) Ltd., 2019 (365) ELT 802 (Mad.) wherein it has been held as under:- “ 9. In Hero Cycles v. Union of India reported in 2009 (240) E.L.T. 490 (Born.), the Bombay High Court, held that the mere fact that there was an inadvertent error, on the part of the importer, in not claiming benefit of exemption notification, cannot result in denial of the said benefit. Bombay High Court held that a duty is cast on the authorities, to assess the goods and impose duty, in accordance with law. Bombay High Court also held that, duty cannot be demanded, if it is otherwise not payable. Said Court has held that once there is a power to assess, there is a corresponding duty, to assess, in accordance with law. Against this order, the Revenue preferred an appeal before the Hon'ble Apex Court, and that the same was rejected in Union of India v. Hero Cycles reported in 2010 (252) E.L.T. A103 (S.C.).

10. In the case on hand, from the material on records, we could see that apparently, there was a error, on the part of the supplier, who has inadvertently charged SEK 199450 (Rs. 11,36,865/-), whereas, the actual freight incurred was only SEK 19945 (Rs. 1,13,686.50). Even the supplier has admitted the mistake and they have given a credit note, for the difference involved. Appraiser, who was present in the personal hearing, before the Original Authority, has shown that the split values appearing in the invoice, and admitted that there could have been a mistake in the assessment, due to the wrong figures given by the 1st respondent, and placing on record the above, the Commissioner (Appeals) has observed that excess amount of duty, has been collected, on account of wrong freight amount, being included in CIF value