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2011 (8) TMI 720 - HC - CustomsLevy of interest in terms of Section 18(3) of the Customs Act 1962 on the duty-difference arrived at on the basis of the finalization of the provisional assessment Prospective or Retrospective - Held That - we hold that no interest can be levied under Section 18(3) of the Customs Act on the differential amounts of duty paid by the appellants upon finalization of the provisional assessments which were made prior to 13.07.2006 thus prospective application.
Issues Involved:
1. Levy of interest under Section 18(3) of the Customs Act, 1962. 2. Reliance on previous CESTAT decisions and their legal standing. Detailed Analysis: 1. Levy of Interest under Section 18(3) of the Customs Act, 1962: The primary issue was whether interest could be levied under Section 18(3) of the Customs Act, 1962 on the differential duty assessed before the enactment of the Taxation Laws (Amendment) Act, 2006, which came into effect on 13.07.2006. The respondent, engaged in ship breaking, had a provisional assessment made on 25.04.2005, and the final assessment was completed on 30.01.2009. The Assistant Commissioner demanded the differential duty along with interest as per Section 18(3). However, the Commissioner (Appeals) and subsequently the CESTAT, following the decision in Sterlite Industries (I) P. Ltd. vs. CC, Tuticorin, ruled that no interest could be charged for provisional assessments made prior to 13.07.2006, as Section 18(3) was introduced only on that date. The Court noted that Section 18(3) of the Customs Act, 1962, which mandates the payment of interest on differential duty, came into force on 13.07.2006. The Court emphasized that this provision could not be applied retrospectively to provisional assessments made before this date. The Court cited the Supreme Court's judgment in India Carbon Ltd. v. State of Assam, which held that interest could only be levied if the statute explicitly provided for it. The Court concluded that Section 18(3) created a new liability and, in the absence of any retrospective effect, could not be applied to provisional assessments made prior to 13.07.2006. 2. Reliance on Previous CESTAT Decisions and Their Legal Standing: The second issue was whether the CESTAT was correct in relying on its previous decisions in the cases of Sterlite Industries (India) Ltd. and Kamdar Associates, especially when appeals and applications for rectification were pending in higher courts. The CESTAT had dismissed the department's appeal by relying on its previous decisions, which held that no interest was payable on differential duty arising from provisional assessments made before 13.07.2006. The Court upheld this reliance, noting that the CESTAT's decisions were consistent with the legal principle that substantive provisions creating new liabilities are not retrospective unless explicitly stated. The Court also referred to the decision in Commissioner of Customs vs. Hindalco Industries Ltd., where it was held that amendments made by the Taxation Laws (Amendment) Act, 2006, including those to Section 18, were substantive and not clarificatory. Therefore, they could not be applied to pending proceedings or assessments made before the amendment. Conclusion: The Court concluded that the Tribunal did not commit any error in deciding the issue in favor of the respondent. It held that Section 18(3) of the Customs Act, 1962, which mandates the payment of interest on differential duty, could not be applied retrospectively to provisional assessments made before its introduction on 13.07.2006. Consequently, the tax appeal was dismissed.
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