9911796707
TMI Blog2013 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... n or after 13.07.2006 irrespective of insertion of Section 18(3) on 13.07.2006 ? (d) Whether in the facts and circumstances of the case, when Final Assessment is made after 13.07.2006, i.e. the date on which Section 18(3) was inserted, interest can be chargeable from the date of Provisional Assessment or can it be chargeable and from 13.07.2006 only? (e) Whether in the facts and circumstances of the case when newly inserted Section 18(3) provides for interest to be charged as per section 28AB, which is the main charging section, can interest be charged under section 28AB without taking resort to section 18(3) when section 28AB is on the statute since 2001? (f) Whether in the facts and circumstances of the case, the Hon'ble CESTAT was correct in law in merely relying on the decision of CESTAT, SZB, Chennai in the case of M/s.Sterlite Industries (India) Ltd. (2008 (223) ELT (Tri. Chennai) ignoring the fact that MCA No.454/2007 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.?" On having heard learned counsel Mr. Ms. Yagnik for the appellant and with her assistance examining the papers, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellants and arguments of ld. JDR for the Revenue, we note that Section 18(3) of the Customs Act, the charging provision for interest on differential duty paid upon finalization of provisional assessment in respect of imported goods, came into force on 13.07.2006 only. All the provisional assessments, in the present cases, were made prior to the said date. The case of the Revenue, reiterated by JDR, is that Section 28AB of the Act, referred to in Section 18(3) of the Act, was in force during the period of provisional assessments and, therefore, it was open to the department to levy interest on the differential amounts of duty paid by the assessee upon finalization of such assessments. This case of the Revenue is not acceptable inasmuch as the charging provision for interest on any differential amount of duty paid on finalization of provisional 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to 13.07.2006, the date on which Section 18(3) ibid came into force. In other words, the impugned orders are liable to be set aside. It is ordered accordingly. All these appeals stand allowed." 11. We may notice that similar view has been taken by the Tribunal in several other cases including the present one. 12. It is not in dispute that prior to 13.07.2006, there was no provision under which the authorities could levy interest on the differential duty i.e. between finally assessed customs duty and provisionally assessed duty. Alongwith other provisions contained in Section 18, Sub-section (3) was therefore introduced to enable the department to levy such interest. We may also notice that simultaneously other changes were also made in Section 18 relating to the question of unjust enrichment and refund of duty already collected under 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Here in the present case, the assessments of the Hindu Undivided Family for the assessment years 1950- 51 to 1956-57 were completed in accordance with the provisions of the old Act which included Section 25A and the Income Tax officer was, therefore, not entitled to avail of the provision enacted in sub-section (6) read with sub-section (7) of Section 171 of the new Act for the purpose of recovering the tax or any part thereof personally from any members of the joint family including the petitioners." 17. In the present case, we find that prior to introduction of sub-section (3) of Section 18 of the Act in the present form, there was no liability to pay interest on difference between finally assessed duty and provisionally assessed duty upon payment of which the assessee may have cleared the goods. It 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 opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act indicate that subsections (3)(4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularize the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary because Section 18 of the Act which provides for provisional assessment of duty presently (I.e. upto 12.07.2006) does not provide for various issues arising from the finalization of provisional assessment. Thus it becomes apparent that the amendment in question is substantive in nature when one find that various provisions have been inserted which were not forming part of the original Section 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 subsection (5) deserves consideration. Thus in effect upto 12.07.2006 no provision existed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
