2011 (2) TMI 489 - AT - Customs

Demand and interest - Provisional assessment - classification of fuel and oil in the tank in the engine room - As regards the decision of the Tribunal in the case of Chemsilk Commerce (P) Ltd vs. Commissioner of Customs (Port) 2008 -TMI - 88885 - CESTAT KOLKATA it has been stated that the relevant order must have been passed prior to 13.07.2006 since the appeal number list the year 2005 - Therefore there was no question of confirmation of demand under Section 18(3) of Customs Act 1962 - Decided in favour of assessee.

Summary

Issues:
1. Demand of interest under Section 18(3) of Customs Act, 1962 for differential duty paid on final assessment made after provisional assessment.

Analysis:

The judgment by the Appellate Tribunal CESTAT, Ahmedabad involved a dispute regarding the demand of interest under Section 18(3) of the Customs Act, 1962. The Appellant had imported a vessel for breaking purposes, and the bill of entry was provisionally assessed due to a dispute over the classification of fuel and oil in the tank in the engine room. Subsequently, the final assessment was completed, demanding a differential duty with interest. The Appellant contended that since the provisional assessment was done before 13.07.2006, the interest under Section 18(3) should not be applicable. The Revenue appealed against this contention.

The Revenue argued that Section 28AB of the Customs Act, 1962, referenced in Section 18(3), was in force during the provisional assessment, making interest leviable. They cited the decision of the Hon'ble Supreme Court in the case of M/s. Pratibha Processors vs. UOI, emphasizing that interest is compensatory and must be imposed on an assessee withholding tax payment. The Revenue also challenged the Tribunal's decision in other cases, stating that interest should be levied as Section 18 is procedural.

The Tribunal examined the submissions and noted that Section 18(3) was introduced on 13.07.2006, making importers liable to pay interest on final assessment amounts. The key issue was whether interest was applicable when provisional assessment occurred before this date. Referring to a previous case, the Tribunal held that interest cannot be levied on differential duty paid post-finalization of provisional assessments made before 13-7-2006. The Tribunal emphasized that the law in force during the provisional event governs any incidental levy, thus rejecting the Revenue's appeal.

The Tribunal found that the issue was settled by the previous case where provisional assessment was done pre-13.7.2006, and Section 28AB was considered. The Tribunal disregarded the Revenue's reliance on the Pratibha Processors case, highlighting the importance of specific legal provisions. The Tribunal rejected the Revenue's appeal, stating it lacked merit due to the precedent set by the previous case.