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TMI Blog1987 (8) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared description, however, the goods were assessed to duty under Heading No. 51.01/03 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as the Import Schedule), at 100% plus 20% (auxiliary duty), and additional duty with reference to Item No. 22(iii) of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the CET) at 5.5% plus 1.9 paise per sq. meter, plus Rs. 63.80 per kg. plus 10% plus 5% plus 31.5%. The appellants paid, on 8-5-1979, the duty so assessed and cleared the goods for home consumption. The Chemical Examiner reported on 18-5-1979 on the sample thus :- Sample is in the form of cut piece of fabric wholly composed of filament yarns of polyamide (nylon). Denier in each case of warp and weft yarn is 80.6. It appears a copy of the test report was furnished to the appellants on 14-11-1980 on specific request. 3. On 18-11-1980, the appellants addressed a letter to the Assistant Collector of Customs for appraisement contending, with reference to Section 17(4) of the Customs Act, 1962 (hereinafter referred to as the Act), that, immediately on receipt of the test report, the department should have reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, there was no action pending at his end. The matter was pursued in appeal. The Appellate Collector, in his order dated 26-8-1982, dealing with the merits of the case, stated that, from the case records, he observed that the Bill of Entry had been assessed finally and that since there was no provision in the Act for suo motu refund and there was no claim under Section 27 of the Customs Act under which alone refund could be granted, and on this basis, he rejected the appeal. 4. We have heard Shri T.V. Krishnamurthy, Consultant for the appellants and Shri Vineet Kumar, Sr. D.R. for the respondent. 5. During one of the hearings, Shri T.V. Krishnamurthy had drawn our attention to a notation on the photo copy of the quadruplicate of the Bill of Entry for home consumption to the following effect :- S/26-465/79 II1C of 7-5-1979" and contended that there must be proceedings in the Customs House with reference to this consignment under the abovementioned file number. Accordingly, we had directed the Sr. D.R. to produce, for our perusal, the original and duplicate copies of the Bill of Entry as well as the Customs House file bearing the above cited number from which it appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis ,of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-assessed to duty. Evidently, Section 17(1) and 17(2) provide for assessment of goods after examination and testing. In the present case, though a sample of the goods was drawn for test, the initial assessment was done prior to the receipt of the test report. These two sub-sections have, therefore, no application. 10. Section 17(4) is also not applicable to the facts of the present case since the initial assessment was done not on the basis of the statements made in the Bill of Entry and the documents produced, but on the basis of a classification and denierage which, subsequently, on test, appears to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods may, pending the completion of such test, be assessed provisionally, provided the importer furnishes appropriate security for the payment of the deficiency, if any, between the duty finally assessed on the basis of the test results and the duty provisionally assessed. It further enjoins that, on final assessment, the amount paid initially shall be adjusted against the duty finally assessed and the difference between the amounts of provisional duty and final duty shall be recovered from the importer or refunded to him, as the case may be. 13. In the present instance, the initial assessment was admittedly not done on the basis of the declarations made in the Bill of Entry. There is no evidence on record to show whether the assessment was done at the higher rate of duty at the request of the importer or at the instance of the proper officer. Be that as it may, it is clear that a sample was drawn for test and the test would have been necessary only if the proper officer had wanted to check the declarations in the Bill of Entry and ascertain other particulars. In this case, the initial assessment was, as contended by Shri Krishnamurthy, a provisional assessment and not a fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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