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2022 (2) TMI 632 - AT - CustomsFinalization of provisional assessment - refund of the excess Duty paid - request for rectification under Section 154 of the Customs Act 1962 - exemption Notification No. 62/2007-Cus. - HELD THAT - It is clear that the statute mandates the passing of the final assessment since a provisional assessment will have to be taken to its logical conclusion by passing a final assessment order after obtaining necessary information or any report or any other document that the Officer may require as prescribed under Section 18(1) ibid. It is also for the reason that a provisional assessment is in the nature of an interim order which is not enforceable. Otherwise granting of time as in Section 18(4) becomes otiose. Other than this law does not recognize any deeming fiction to treat a provisional assessment as the final one. Hence a provisional assessment will always remain as a provisional one. The authorities below have erred in collecting the Duty at 300/- per M.T. which is clearly illegal and in violation of Notification No. 62/2007-Cus. ibid.; and secondly the order of the Deputy Commissioner of Customs which is treated as the Order-in-Original is clearly a non-speaking order and the same cannot be sustained. The collection of Duty therefore is clearly without the authority of law. Consequently the impugned order which has sustained the non-speaking order of the Deputy Commissioner cannot also be sustained. The appeal is allowed by way of remand to the Original Authority with a direction to pass a speaking order finalizing the assessments. It is also directed that relief as per Notification No. 62/2007-Cus. dated 03.05.2007 be given taking into account the test reports.
Issues Involved:
1. Provisional assessment of export duty on Iron Ore Fines. 2. Non-consideration of Supreme Court judgment in assessment. 3. Applicability of Section 154 of the Customs Act, 1962 for rectification. 4. Delay in finalization of provisional assessments and communication of test results. 5. Legality of duty collection and non-speaking order by the Deputy Commissioner. Issue-wise Detailed Analysis: 1. Provisional assessment of export duty on Iron Ore Fines: The appellant exported Iron Ore Fines under 14 shipping bills during 10.05.2007 to 24.03.2008, with Fe content of around 63 to 64%. As per the Export-Import Policy (2004-09), export of Iron Ore Fine with Fe content up to 64% was allowed freely. Export duty was levied at ?300/- per Metric Tonne (M.T.), but Notification No. 62/2007-Cus. dated 03.05.2007 exempted Iron Ore Fines with Fe content of 62% and below, reducing the duty to ?50/- per M.T. Since the Fe content could not be determined at the time of export, provisional assessments were made, awaiting final test reports. The final test results showed Fe content below 62%. 2. Non-consideration of Supreme Court judgment in assessment: The appellant argued that the final test results were not disclosed and obtained under RTI. The appellant requested the finalization of provisional assessments and reassessment of export duty per Notification No. 62/2007. The Deputy Commissioner rejected the rectification application, ignoring the Supreme Court's decision in Union of India v. Gangadhar Narsingdas Aggarwal, which the appellant relied on, making the order unsustainable. 3. Applicability of Section 154 of the Customs Act, 1962 for rectification: The appellant cited a similar case handled by the Mumbai Bench of CESTAT, where non-consideration of a Supreme Court decision was corrected under Section 154 of the Customs Act, 1962. The Tribunal in that case held that errors or omissions by the proper officer in applying the law could be corrected under Section 154, without challenging the assessment. The Tribunal emphasized that such omissions are rectifiable errors. 4. Delay in finalization of provisional assessments and communication of test results: The appellant's initial request for finalization of shipping bills was acknowledged on 27.05.2009, but the Customs authorities did not respond, prompting repeated requests. The Revenue's silence and failure to communicate the final report prevented timely reassessment requests. The Tribunal noted that provisional assessments must be finalized per Section 18 of the Customs Act, 1962, and provisional assessments remain provisional until a final order is passed. 5. Legality of duty collection and non-speaking order by the Deputy Commissioner: The Tribunal found that the authorities erred in collecting duty at ?300/- per M.T., violating Notification No. 62/2007-Cus. The Deputy Commissioner's order was a non-speaking order, lacking legal justification and therefore unsustainable. The Tribunal concluded that the collection of duty was without authority of law, and the impugned order, which upheld the non-speaking order, could not be sustained. Conclusion: The Tribunal set aside the impugned order and allowed the appeal by remanding the case to the Original Authority. The Original Authority was directed to pass a speaking order finalizing the assessments and granting relief per Notification No. 62/2007-Cus., considering the test reports. Consequential benefits, if any, were to be provided to the appellant as per law.
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