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TMI Blog2011 (8) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.04.2009/29.05.2009 of CESTAT, WZB, Ahmedabad in the case of M/s. Kamdar Associates and others, ignoring the fact that MCA No. 454 of 2007 has already been filed with Madras High Court against the order of CESTAT, SZB, Chennai in the case of M/s. Sterlite Industries (India) Ltd. and ROM-application has been filed before CESTAT, WZB, Ahmedabad against the order of CESTAT, WZB, Ahmedabad in case of M/s. Kamdar Associates and others?" 2. Brief facts are follows: 2.1 The respondent is engaged in the business of ship breaking. Respondent imported ship for breaking and filed the bill of entries for clearance of vessel on or around 24.01.2005 with the customs authorities. There was a dispute between the department and the respondent with respect to fuel and oil contained in the tanks situated outside the engine Room and the fuel and oil in the tanks situated inside the engine room. With respect to such dispute we may not go any deeper since ultimately the question of charging customs duty on such fuel and oil was decided in favour of the department. Suffice it to note that in view of this dispute, the ship was not cleared upon final assessment. The department resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal committed error in deleting the interest. She submitted that atleast for the period subsequent to 18.07.2006 when sub-section (3) of Section 18 of the Customs Act permitted charging of interest, the levy of interest ought to have been upheld. 4. Our attention was drawn to the decision of the Apex Court in case of Pratibha Processors vs. Union of India reported in 1996 (88) E.L.T. Page 12 as well as in case of Haji Lal Mohd. Biri Works Allahabad through Abdul Hamid vs. The State of U.P and ors reported in 1973 (32) STC 496. 5. Though the notice was served, no one appeared for the respondent. 6. Having thus heard learned counsel for the department and having perused the documents on record, the short controversy that calls for consideration in this tax appeal is whether in facts of the present case the department could charge interest from the respondent under Sub-section (3) of Section 18 of the Customs Act for the difference between the finally assessed duty and the provisional duty. 7. As noted, the facts are not in dispute. Provisional assessment was made on or around 25.04.2005. Provisional duty as per such order was paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional assessment is Section 18(3) of the Act. This is a substantive provision of law, which, in the absence of express mention of retrospective effect, cannot be given retrospective operation so as to cover the provisional assessment made prior to 13.07.2006. In this context, it will be Apposite to refer to the Hon'ble Supreme Court's judgement in India Carbon Ltd. V. State of Assam- [1997] 106 S.T.C. 460 (S.C), wherein it was held that interest could be levied and charged on delayed payment of tax only if the statute that levied and charged the tax made a substantive provision in this behalf. The substantive provision of law relevant to the present case, we repeat, is Section 18(3) of the Customs Act and not Section 28AB of the Act. Where any interest on duty is leviable from an assessee under Section 18(3) of the Act, it shall be recovered at the rate prescribed under Section 28AB. This does not mean that the substantive provisions of Section 28AB are attracted. The case of the Revenue is, therefore, not sustainable. The appellants are also supported by the C.B.E.C's letter bearing F.No. 354/66/2001-TRU, dt., 21.06.2001, which laid down that interest could be charged under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder certain circumstances. 13. The answer to the question posed before us would depend on whether sub-section (3) of Section 18 of the Act in the present form creates a new liability. In other words, the said provision can be stated to be a substantive provision creating fresh liability and not a mere procedural provision. 14. It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. 15. In other words, it is a well established principles of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective operation (refer to the decision of Apex Court in case of Keshavan Medhava Menon vs. State of Bombay AIR 1951 SC 128). 16. Particularly, in fiscal legislation imposing liabilities generally governed by the normal rule is that it is not retrospective in nature. It is, however, equally undisputed that a proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was only with effect from 13.07.2006 that such charging provision was introduced in the statute. Upon introduction therefor such provision created interest liability for the first time w.e.f. 13.07.2006. In absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such a statutory provision, we are of the opinion that the same cannot be applied to cases of provisional assessment which took place prior to the said date. Any such application would in our view amount to retrospective operation of the law. 18. In case of Commissioner of Customs vs. Hindalco Industries Ltd. reported in 2008 (231) E.L.T. Page 36, Division Bench of this Court was called upon to interpret some of the other provisions of Section 18 which were also introduced by virtue of the same amendment i.e. Taxation Laws (Amendment) Act No. 29 of 2006. This Court, of course, was considering the provisions of unjust enrichment in context of its applicability to pending proceedings as on 13.07.2006. The Division Bench taking note of the statutory provisions of Section 18, including sub-section (3) and the post amendment formed an opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 18 of the Act as it stood upto 12.07.2006. It is not possible to stale that the provisions for payment of interest on duty short levied or entitlement to interest on duty paid in excess of the finally assessed duty can be considered to be clarificatory provisions and in the same vein the newly inserted sub-section (5) deserves consideration. Thus in effect upto 12.07.2006 no provision existed in Section 18 of the Act which would permit revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon finalization of provisional assessment under Section 18 of the Act. 19. The decision of the Apex Court in case of Pratibha Industries laid down that interest in Section 16(2) of the Customs has no independent or separate existence and if the principal is not recovered or payable so also interest on it. We do not find the said decision has any application in the present case. 20. Similarly in case of Hajilal (Supra), Apex Court was examining the provision of U.P. Sales Tax Act. Considering the statutory provision it was held that interest to be added in the amount of tax was only for the purpose of recovery which can be don ..... X X X X Extracts X X X X X X X X Extracts X X X X
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