2016 (7) TMI 88 - AT - Customs

Interest liability on the differential duty of the customs which was paid after 103 days from the date due to be paid to the national exchequer - violation of Section 47(2) or not - Respondents are arguing that under the provisions of Section 28AA of Customs Act they have the time of three months to make the payment of differential duty and the liability of interest can accrue only after the expiry of said three months prescribed in Section 28AA of the Customs Act and the department s demand for interest for the said delayed payment is therefore without any basis. Held that - The goods were cleared or the out of charge order was made on 23-11-2000. It is after this that a letter was issued demanding enhanced duty. The appellants paid the differential duty on 10-03-2001. It is to be noted that the assessed duty stands discharged by respondents on 20-11-2000 itself. Thus there was no delay in paying duty assessed in terms of Section 47(1) of the Act. The reliance on the judgments in Ajantha Tubes Ltd. case 2006 (9) TMI 381 - CESTAT, NEW DELHI by my learned brother, Member(T) in my opinion is misplaced as the provisions of Section 28AA and Section 28AB are not invoked. On appreciation of facts, it is clear that there is no violation of Section 47(2) of the Act. The liability to pay interest cannot be assumed. - Decided against the revenue.

Issues Involved:
1. Liability to pay interest on differential duty.
2. Imposition of penalty for delayed payment of differential duty.
3. Applicability of Section 47(2) and Section 28 of the Customs Act, 1962.
4. Interpretation of relevant provisions of the Customs Act, 1962.
5. Validity of reassessment and demand for differential duty.

Issue-wise Detailed Analysis:

1. Liability to Pay Interest on Differential Duty:
The main issue revolves around whether the respondent is liable to pay interest on the differential duty of customs, which was paid 103 days after the due date. The department argued that under Section 47(2) and Section 28 of the Customs Act, interest is automatically payable for any delay in duty payment. However, the respondent contended that they had three months to pay the differential duty under Section 28AA, and interest liability would only accrue after this period.

2. Imposition of Penalty for Delayed Payment of Differential Duty:
The Deputy Commissioner initially imposed a penalty of ?10,000 under Section 117 of the Customs Act for the delay in payment of differential duty and non-payment of interest. The respondent argued against the imposition of this penalty, asserting that the delay was not deliberate and that they had complied with the reassessment directives.

3. Applicability of Section 47(2) and Section 28 of the Customs Act, 1962:
The department cited Section 47(2) of the Customs Act, which mandates interest payment if the duty assessed is not paid within two days from the date the bill of entry is returned to the importer. The respondent argued that since they paid the initially assessed duty within the stipulated time, Section 47(2) was not applicable. The reassessment and subsequent demand for differential duty should be governed by Section 28, which allows a three-month period for payment without interest.

4. Interpretation of Relevant Provisions of the Customs Act, 1962:
The case required interpretation of Sections 17, 28, and 47 of the Customs Act. The department maintained that interest was due under Section 47(2) for delayed payment of reassessed duty. However, the respondent and the Commissioner (Appeals) argued that once the initially assessed duty is paid and the goods are cleared, Section 47(2) ceases to apply, and any subsequent demand should follow the provisions of Section 28.

5. Validity of Reassessment and Demand for Differential Duty:
The reassessment was based on a notification issued after the bill of entry was initially assessed but before the goods were cleared. The respondent did not challenge the reassessment and paid the differential duty. The dispute was whether interest and penalty were justifiable under these circumstances.

Separate Judgments:

Judgment by Member (Technical):
The Member (Technical) upheld the department's appeal, stating that the respondent was liable to pay interest on the delayed payment of differential duty under Section 47(2) and Section 28 of the Customs Act. The penalty imposed by the Deputy Commissioner was also deemed sustainable.

Judgment by Member (Judicial):
The Member (Judicial) disagreed with the Member (Technical), emphasizing that once the initially assessed duty is paid and the goods are cleared, Section 47(2) does not apply to reassessed duty. The demand for interest should be governed by Section 28, which allows a three-month period for payment without interest. The penalty was also found unjustifiable.

Final Order by Majority:
The third member, resolving the difference of opinion, agreed with the Member (Judicial). It was held that there was no violation of Section 47(2) and no interest liability against the respondent. Consequently, the Revenue's appeal was rejected, and the penalty was not sustained.

Conclusion:
In conclusion, the majority held that the respondent was not liable to pay interest under Section 47(2) for the delayed payment of reassessed duty and that the penalty imposed was unjustified. The appeal by the Revenue was rejected, affirming that the provisions of Section 28 should govern the reassessment and payment of differential duty.

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