2016 (12) TMI 9 - AT - Customs

Valuation - import of second-hand machines - EPCG scheme - enhancement of value - Held that - The enhancement accorded by the licencing authority is incorporated into the licence and it has the effect of having been revised to the higher limit from the original date of issue. The assessing officer appears to have encashed the bank guarantee without finalizing the provisional assessment which is an action outside the authority of law. Duties become payable only upon assessment and failure to discharge assessed duty liability is visited by consequences such as encashment of bank guarantee or other coercive measures. The realization from the encashment of bank guarantee is liable to be treated as payment of duty and interest, if any be due, is liable to charged only till that date on the shortfall. Consequently, in finalizing of the provisional assessment, it was incumbent upon the proper officer to order for recovery of duty only on the value of imports not covered by the enhanced value of licence as on date of import, i.e., ₹ 4,97,180 along with interest from 1st December 1995 to 29th September 1998 when the bank guarantee was encashed. The interest liability is approximately ₹ 2,53,275. With a total liability of ₹ 7,50,455 appellant is entitled to refund of the amount appropriated in excess in the order-in-original. Appeal is allowed by modifying the demand of duty and interest as narrated supra. The assessment is finalized on the above terms and the competent authority in New Customs House is directed to compute the exact interest liability and refund the balance amount to the appellant.

Summary

Issues:
1. Provisional assessment of imported machines under EPCG scheme
2. Enhancement of licence value and shortfall in covering import value
3. Encashment of bank guarantee before final assessment
4. Appeal against provisional assessment and refund claim
5. Final assessment of duty liability and interest calculation

Issue 1: Provisional Assessment under EPCG Scheme
The appellant, M/s Niwas Spinning Mills Ltd, imported second-hand machines under the EPCG scheme. The value of the consignments was initially enhanced during assessment, resulting in a shortfall of duty payment. The appellant requested provisional assessment pending approval for enhancement of the licence value, providing a bank guarantee and bond as security. The licencing authority initially declined the application but later increased the permissible import limit. However, the licence was still insufficient to cover the import value, leading to a duty shortfall.

Issue 2: Enhancement of Licence Value and Shortfall
Despite the enhancement of the permissible import limit, the licence was still inadequate to cover the import value, resulting in a duty liability. The appellant faced challenges in meeting the duty payment obligations due to the shortfall in the licence value compared to the assessed import value. This discrepancy led to a complex calculation of duty liability and interest, ultimately resulting in the appellant being held liable for further dues.

Issue 3: Encashment of Bank Guarantee
While the request for enhancement was pending with the licencing authority, the assessing officer prematurely encashed the bank guarantee, causing financial strain on the appellant. This action was deemed to be outside the authority of law as duties become payable only upon proper assessment. The encashment of the bank guarantee without finalizing the provisional assessment was considered improper and led to additional financial burdens on the appellant.

Issue 4: Appeal and Refund Claim
The appellant appealed against the encashment of the bank guarantee and the subsequent duty liability. The first appellate authority remanded the matter back to the original authority considering procedural lapses and non-compliance with natural justice principles. The appellant sought a refund of the encashed amount, which was not addressed promptly, leading to legal recourse through the Hon'ble High Court of Bombay for expedited resolution.

Issue 5: Final Assessment and Interest Calculation
In the final assessment proceedings, the original authority concluded the provisional assessment due to the appellant's failure to provide necessary documentation. A detailed calculation of duty liability and interest was conducted, resulting in a specific duty amount and interest due. The appellate tribunal modified the demand of duty and interest, directing the competent authority to compute the exact interest liability and refund the balance amount to the appellant within a specified timeframe.

In conclusion, the judgment addressed the challenges faced by the appellant in the provisional assessment, enhancement of licence value, premature encashment of the bank guarantee, appeal process, and final duty liability determination. The tribunal provided detailed reasoning for its decision, emphasizing the importance of proper assessment procedures and adherence to legal requirements in duty payment matters under the EPCG scheme.