2014 (8) TMI 811 - HC - Customs

Import of Ship Unloaders for handling coal - Benefit of Customs Notification No.16/2000 Sl.No.337(iv) under CTH 98.01 - concessional rate of duty on the goods of import - It is the case of the Department that the importer did not furnish the required documents within the stipulated period and, therefore, the assessment was made on merits under CTH 8428.90 with 25% Basic Customs Duty 10% Surcharge 16% Countervailing Duty 4% Special Additional Duty, as against the concessional duty claimed - Held that - there appears to be no difference between the contents of the two letters issued by the Secretary to Government, Energy Department, Government of Tamilnadu, Chennai to the Customs Department, while recommending the case of the importer for concessional rate of customs duty. - the Tribunal was justified in holding that all necessary materials required for assessment under the Project Import Regulations, 1986 were available at the inception, namely at the time of filing of the Bill of Entry. It has to be noticed that, at the first instance, the importer did not get the assessment under CTH 98.01 based on any mis-statement in respect of information or on the basis of an erroneous document. The Department had declined their request for assessment under CTH 98.01 as Project Import. When it was declined, the importer protested and pursued the matter and the Department thereafter noticing the error rectified the mistake by passing the order of reassessment under CTH 98.01 as Project Import extending the benefit of Notification No.16/2000. If the first assessment, on subsequent examination, is found to be based on documents or information furnished, which is not true, then the question of invoking Section 17(4) of the Customs Act (as it stood then) will arise. As regards the applicability of Board Circular No.64/2000-Cus., dated 26.7.2000, the Tribunal has stated that the circular is clarificatory in nature and is applicable to cases were the benefit under EPCG Scheme was denied on the ground that EPCG licence was neither obtained nor produced at the time of assessment by the importer; and that the importer did not clear the goods for want of the EPCG Licence and only after the importer got the EPCG licence and submitted it to the customs authorities, that the goods were cleared by the importer after reassessment. On such premise, the Tribunal in this case has rightly held that the said Board Circular is not applicable to the facts of the present case, as the required certificate was available at the time of submitting application for Project Import Contract Registration on 24.1.2001, even before the Bill of Entry was filed. We have no hesitation to hold that the reasoning given by the Tribunal on the above stated fact is acceptable and consequently, we hold that the Board Circular No.64/2000-Cus., dated 26.7.2000 is not applicable to the facts of the present case and will not entitled the Revenue to demand interest - Decided against Revenue.

Summary

Issues Involved:
1. Interpretation of Section 17(4) of the Customs Act.
2. Applicability of Board Circular No.64/2000-Cus., dated 26.7.2000.
3. Legality of the demand for interest on reassessed duty.

Detailed Analysis:

1. Interpretation of Section 17(4) of the Customs Act

The Department argued that the reassessment of duty fell under Section 17(4) of the Customs Act due to the importer's failure to provide required documents initially. The Tribunal, however, found that the importer had not withheld any information or made any misdeclaration. The reassessment was done under Section 2(2) read with Section 47(1) & (2) of the Customs Act, not Section 17(4). The Tribunal noted that the importer had sought registration under the Project Import Regulations, 1986, and provided the Essentiality Certificate at the time of filing the Bill of Entry. The reassessment on 13.5.2002 was based on the same documents initially provided, indicating no misdeclaration or withholding of information. The Tribunal concluded that Section 17(4) was not applicable, and the reassessment should be considered under Section 2(2) of the Customs Act.

2. Applicability of Board Circular No.64/2000-Cus., dated 26.7.2000

The Tribunal held that the Board Circular No.64/2000-Cus., dated 26.7.2000, was not applicable to the present case. The circular pertains to situations where benefits under the EPCG Scheme were denied due to the non-production of the EPCG licence at the time of assessment. In this case, the required certificate was available when the application for Project Import Contract Registration was submitted on 24.1.2001. The Tribunal reasoned that since the certificate was provided before the Bill of Entry was filed, the circular did not apply, and the Revenue was not entitled to demand interest based on it.

3. Legality of the Demand for Interest on Reassessed Duty

The Department's demand for interest from 29.3.2001 to 13.5.2002 was based on the reassessment under Section 17(4) and the Board Circular. The Tribunal found that the reassessment was not due to any fault of the importer but was a correction of the initial assessment error. The reassessment was done under Section 2(2) of the Customs Act, and the importer paid the reassessed duty on the same day. The Tribunal concluded that the importer was not liable to pay interest, as the reassessment was not due to any misdeclaration or withholding of information. The demand for interest was, therefore, invalid.

Conclusion:

The High Court upheld the Tribunal's findings, stating that the reassessment was correctly done under Section 2(2) of the Customs Act and not under Section 17(4). The Board Circular No.64/2000-Cus., dated 26.7.2000, was deemed inapplicable to the case. Consequently, the demand for interest by the Revenue was invalid. The appeal was dismissed, and the substantial questions of law were answered against the Revenue.