2019 (12) TMI 789 - AT - Customs

Provisional assessment - ship demurrage charges - assessment of amount of clean energy cess - HELD THAT - It is now an well established legal principle that a assessment which is provisional is provisional for all purposes and at the time of finalization of the assessment, all factors which are necessary for finalization of the assessment must be reckoned. For instance, if the assessment is left open for questions of valuation, and subsequently it is found that the classification also requires a change or some other licencing requirement has to be examined, all these factors must be examined while finalizing the provisional assessment. There cannot be a provisional assessment which is provisional for one purpose and not provisional for other purposes. Imposition of clean energy cess - The second contention of the Revenue is that the importer, having not contested the Bills of Entry and having themselves assessed their Bills of Entry provisionally including therein the Clean Energy Cess, cannot challenge the imposition of the Clean Energy Cess before the first appellate authority - HELD THAT - The first appellate authority has correctly allowed the appeals of the importer by the importer and has ordered re-assessment of the six Bills of Entry after excluding Clean Energy Cess on the ground that there is no charge of Clean Energy Cess on goods falling under Customs Tariff Heading 2704. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Stay application filed by Revenue against Order-in-Appeal No.KOL/CUS(PORT)/AA/477/2018.
2. Provisional assessment of Low Ash Metallurgical Coke under Customs Tariff Heading 2704.
3. Challenge to assessment of Bills of Entries based on Clean Energy Cess levy.
4. Grounds of appeal by Revenue against first appellate authority's decision.
5. Legal principle regarding finalization of provisional assessments.
6. Importer's challenge to Clean Energy Cess imposition before first appellate authority.
7. Precedent on challenging self-assessments before first appellate authority.
8. Correctness of first appellate authority's decision on re-assessment of Bills of Entry.

Analysis:

The judgment pertains to a stay application filed by the Revenue against Order-in-Appeal No.KOL/CUS(PORT)/AA/477/2018. The case involves the provisional assessment of Low Ash Metallurgical Coke under Customs Tariff Heading 2704, where the importer sought provisional assessment due to ship demurrage charges not being included in the value. The first appellate authority set aside the finalization of six Bills of Entries, directing their assessment under 2704 0090 without the levy of Clean Energy Cess. The Revenue appealed this decision, arguing that the importer had added Clean Energy Cess during import declaration and did not dispute it earlier. The Revenue contended that the importer cannot challenge the finalized Bills of Entry on new grounds. The Tribunal noted that provisional assessments must consider all factors necessary for finalization, rejecting the Revenue's argument on self-assessment challenges.

The Tribunal referenced a Supreme Court judgment to support that all assessments, including self-assessments, can be challenged before the first appellate authority. In this case, the first appellate authority correctly allowed the importer's appeals and ordered re-assessment of the Bills of Entry without Clean Energy Cess under Customs Tariff Heading 2704. Consequently, the Tribunal found no merit in the Revenue's appeal and dismissed it along with the stay application. The judgment emphasizes the importance of considering all aspects during provisional assessments and upholds the right to challenge assessments, including self-assessments, before the first appellate authority.