2012 (5) TMI 498 - HC - Customs

Whether Interest u/s 28AA of Customs Act, 1962 for delay in payment of duty can be levied on demand of duty raised on review of earlier order wherein provisional assessments were finalized - whether Tribunal was justified in dropping demand of interest - Held that - In present case, Apex court on 14.08.1996 imposed demand of duty by reviewing its earlier order dated 09.09.1991. Assessee discharged such liability, however, Revenue levied interest u/s 28AA on account of delayed payment of duty. Tribunal rightly concluded that finalization of provisional assessments are governed by Section 18 and Section 28AA would have no application as no duty has been determined u/s 28(2). Further, no notice u/s 28(1) to recover any short levy or non levy of duty was issued. Consequently no cause to recover any duty under sub section (2) of Section 28 would arise. Therefore Section 28AA of the said Act would have no application to present facts. Tribunal has only held that interest is not recoverable under the provisions of the said Act and has not allowed appeal of assessee on the ground that no show cause notice for demand of interest was issued - Appeal dismissed

Summary

Issues:
1. Whether Tribunal was justified in dropping the demand of interest under Section 28AA of the Customs Act, 1962 for delay in payment of duty without a Show Cause Notice?
2. Whether Tribunal was correct in holding that Revenue shall not levy interest despite the importer assuring to pay interest before the Commissioner (Appeals)?

Analysis:

Issue 1:
The appeal by the Revenue under Section 130 of the Customs Act, 1962 challenged the decision of the Central Excise and Service Tax Appellate Tribunal regarding the demand of interest under Section 28AA. The Tribunal concluded that interest under Section 28AA is applicable only when duty is determined under Section 28(2) after a notice under Section 28(1) is issued for short levy or non-levy of duty. As no such notice was issued in this case, the Tribunal held that Section 28AA does not apply. The High Court upheld the Tribunal's decision, emphasizing that interest can only be charged if the statute explicitly provides for it. The Court clarified that interest was not recoverable under Section 28AA for the period before 13/7/2006, as there was no provision for it at that time. The Court cited a previous judgment stating that charging interest is a substantive provision and can only be applied if the statute contains a substantive provision for it.

Issue 2:
Regarding the second issue raised, the High Court determined that the assurance by the importer to pay interest does not prevent them from claiming that no interest is payable under the statute. The Court clarified that the Tribunal's decision that interest is not recoverable under the Customs Act does not prevent the importer from honoring its commitment to pay interest voluntarily. Additionally, the Court mentioned that the Revenue can still pursue civil remedies to enforce any commitment made by the importer. Ultimately, the Court found no substantial question of law raised by either of the issues and dismissed the appeal by the Revenue, with no order as to costs.

This detailed analysis of the judgment provides a comprehensive understanding of the legal issues involved, the arguments presented by both parties, and the reasoning behind the High Court's decision.