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TMI Blog2011 (3) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... For Appellant :SRI.C.K.KARUNAKARAN For Respondent :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS J U D G M E N T Ramachandran Nair, J. Appellants are regular importers of Betel Nuts through Cochin Port. When appellants imported a consignment of Betel nuts from abroad through Cochin Port, the proper officer, who was to assess duty and release the goods on appellants paying duty, raised a dispute on valuation in as much as he doubted the invoice and other documents produced in support of appellants' claim of value of the goods imported. When dispute arose on the valuation for the purpose of assessment of duty finally, appellants requested for provisional assessment of duty under Section 18 of the Customs Act, 1962 (hereinafter called as Act for short) and release of goods on part payment of duty and on execution of bond for the balance duty amount. However, this was declined by the Assistant Commissioner of Customs, against which the Writ Petition was filed for a direction from this Court to the said Officer to make provisional assessment under Section 18 of the Act and for release imported consignments. The learned Single Judge held that provisional assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rules as explained by us below will clearly indicate that release of goods on furnishing bond without Bank Guarantee or adequate security is not only an imprudent and indifferent act on the part of the Officer but is violation of the provisions of the Act and the Rules. The Customs should have been doubly careful in handling importers from North and East while importing cargo through Cochin Port because those are not importers known to the Customs Department and they have no local credibility or assets in Kerala for recovery, if there is default on the part of such importers. Therefore, if goods are released without proper security for the differential duty amount, it is for the department to make final assessments and chase them for recovery. In fact importers are pressing for release of goods on provisional assessment of duty because the Department is indifferently permitting release of goods on part payment of duty and on execution of bond without adequate security and the bond which is only an undertaking by the party, and when dishonoured the Department will be without any effective remedy to recover the amount. 5. Sections 17 18 of the Act provide for assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rterfurnished necessary documents and full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty leviable on such goods may, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. 7. Obviously what is clear from the above provision is that it is by way of an exception to Section 17 of the Act, which means that if final assessment is possible goods whether it is imported or for export should be released after final assessment and collection of duty. However, it may so happen that final adjudication of duty may get delayed for various reasons, and Section 18 of the Act takes care of such situation wherein the Officer is given discretion to make provisional assessment of duty and release the goods pending final adjudication. Three situations are specifically pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub clause of Section 18(1) of the Act. 10. What is clear from the above provisions is that provisional assessment as a matter of right cannot be claimed by any importer or exporter. However, nothing bars an importer or exporter for requesting for time for production of document or information required for final assessment and if the proper officer on being satisfied about the bonafides and genuineness of the claim grants time, then certainly such importer/exporter can request for provisional assessment of duty under Section 18(1) of the Act because otherwise the importer / exporter will end up in paying heavy demurrages for storage of the goods in the Port besides the risk of the cargo getting perished or suffering erosion of the quality. Besides the situation covered by sub clause (a) we do not think the importer/exporter can even request for provisional assessment of duty which, in our view, covered by all other clauses is completely within the discretion of the proper officer adjudicating the matter. In other words, the importer/exporter has no role in matters covered by clauses (b) (c) wherein the Officer only has the discretion to make provisional assessment and rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the duty that may be finally assessed and the provisional duty and deposits with the proper officer such sum not exceeding twenty per cent of the provisional duty, as the proper officer may direct, the proper officer may assess the duty on the goods provisionally at an amount equal to the provisional duty. Regulation 4. Surety or security of the bond - The proper officer may require that the bond to be executed under these regulations may be with such surely or security, or both, as he deems fit. 13. What is clear from Section 18(1) read with the above Regulations is that the Officer could make provisional assessment and release goods under Section 18 of the Act pending final adjudication only after ensuring that the actual duty that could be levied later will be recoverable from the party. For this purpose, the provisions of the Act and the Regulations above referred provide for determination of duty based on available documents, evidence and claim made by the party and also estimation of duty which according to the Officer is likely to be levied finally. So much of the duty determined based on the documents and claim of the party is the admitted duty which the par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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