1995 (7) TMI 167 - AT - Customs

Issues:
1. Barred by limitation - Show cause notice issued in 1990.
2. Provisional assessment - Assessment based on High Court orders.
3. Differential duty calculation - Additional Duty on assessable value.
4. Jurisdiction of High Court - Clearance of goods without fresh Bill of Entry.
5. Time-barred demand - Recovery of differential duty.
6. Interpretation of Customs Act provisions - Section 28 and Section 17.

Analysis:

1. Barred by limitation - Show cause notice issued in 1990:
The appellant argued that the notice issued in 1990 for recovery of differential duty was time-barred. The appellant contended that the initial objection raised by the Department was only regarding duty rates and landing charges, not the calculation of Additional Duty. The appellant disputed the Collector's findings on the limitation issue, citing Section 28 of the Act. The Tribunal held that the demand for differential duty was indeed time-barred, considering the circumstances and the legal provisions.

2. Provisional assessment - Assessment based on High Court orders:
The Superintendent argued that the assessment was provisional due to the High Court's interim orders. However, the Tribunal found no basis for holding the assessment as provisional. The Tribunal noted that the duty was paid, and the bill of entry was completed on a specific date, indicating final assessment. The Tribunal emphasized that the High Court's orders did not make the assessment provisional, and the demand for additional duty was not stayed by the Court's orders.

3. Differential duty calculation - Additional Duty on assessable value:
The Superintendent contended that the appellant incorrectly calculated the Additional Duty on the assessable value without including Customs Duty. The Tribunal observed that the issue of Additional Duty was not raised during the initial objection by the Department. The Tribunal concluded that the demand for differential duty was not valid based on the Superintendent's argument.

4. Jurisdiction of High Court - Clearance of goods without fresh Bill of Entry:
The Vice President highlighted the distinction between the High Court's constitutional authority and the Customs Act provisions. The High Court's interim orders did not amount to clearance under the Customs Act. The Vice President emphasized that the High Court's orders did not bind Customs authorities for assessment purposes. The Tribunal clarified that the High Court's orders did not result in a provisional assessment under the Customs Act.

5. Time-barred demand - Recovery of differential duty:
The Tribunal ruled in favor of the appellant, stating that the demand for differential duty was time-barred. The Tribunal considered the legal aspects, including the completion of assessment and the High Court's orders, in determining the limitation period for the demand.

6. Interpretation of Customs Act provisions - Section 28 and Section 17:
The Vice President interpreted the Customs Act provisions, emphasizing that the assessment was done under Section 17, requiring the appellant to pay the legally due amount, including full duty and charges. The Vice President rejected the appeal, stating that the assessment was not subject to time limitations under Section 28.

In conclusion, the Tribunal allowed the appeal, considering the issues of limitation, provisional assessment, differential duty calculation, High Court's jurisdiction, and the interpretation of Customs Act provisions. The majority decision favored the appellant, granting consequential relief.

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