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TMI Blog2013 (8) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... er may direct, the proper officer may assess the duty on the goods provisionally at an amount equal to the provisional duty. Surety or security of the bond — The proper officer may require that the bond to be executed under these regulations may be with such surety or security, or both, as he deems fit - assesse shall further execute a bond that penalty was also imposed upon the assesse in respect of undervaluing the goods. - W.P.No.16467/2012 - - - Dated:- 28-1-2013 - Krishn Kumar Lahoti And M. A. Siddiqui,JJ. For the Petitioner : Smt.Sudha Pandit and Shri Pritam Jaiswal For the Respondent : Shri S.A.Dharmadhikari ORDER This petition is directed against an order Annexure P/10 dated 20.6.2012 by which a provisional assessment order has been framed against the petitioner. For ready reference, we quote the entire order which reads thus:- Consequent upon the order dated 10.05.2012 of Hon'ble High Court of M.P. at Jabalpur in WP No.378/2012, the importer M/s Ideal Carpets Ltd was personally heard on 21.05.2012. The importer contended during hearing that goods have been in ICD for more than 12 months. The condition of the imported cargo has been deteriorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and bank guarantee of Rs.1,68,32,900/- which included differential duty of Rs.84,16,450/-, penalty of equal amount and an additional deposit of Rs.28,78,410/- towards provisional duty for provisionally releasing the goods. In the earlier round of litigation, it was intimated to the Court that the goods of the petitioner were not seized, but were retained subject to provisional assessment under Section 18 of the Customs Act, 1962 and respondents were ready to release the goods in case the amount so assessed is deposited. The Division Bench of this Court in W.P.No.378/2012 directed the respondents to hear the petitioner and pass an order in accordance with law. In consequence to the order in W.P.No.378/2012, the order quoted hereinabove has been passed by the respondents. This order has been assailed by the petitioner on the following grounds:- (i) That, under Regulation 2 of the Customs (Provisional Duty Assessment) Regulations, 1963, only 20% of the provisional assessment duty could have been directed to be deposited and for remaining duty, respondents could have demanded a bond with or without surety or security or both, as they may deem fit, but directing the petitioner to dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 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 surety or security, or both, as he deems fit. Aforesaid regulations specifically provide that under Section 18(1) of the Customs Act, if a final assessment cannot be made, the assessing authority shall make an estimate of the duty that is most likely to be levied as the provisional duty and if the importer executes a bond in an amount equal to the difference between the duty that may be finally assessed and the provisional duty and deposits with the proper officer such sum not exceeding 20% of the provisional duty, as the said officer may direct, the proper officer may assess the duty on the goods provisionally at an amount equal to the provisional duty. Regulation 4 further provides that a bond may be asked with surety or security or both as the authority may deem fit. Aforesaid provision is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination 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 party has to straightly remit. The duty provisionally determined is nothing but the duty which the Officer estimates over the duty admitted by the party as payable based on his estimation on the value, classification or the rate applicable, which is essentially a matter to be determined by the Officer. Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer/ exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer. After remitting the duty in terms of the claim made by the party (admitted duty) and up to 20% of the provisional duty demanded by the Officer, the Officer is bound to collect security for the balance of the provisional duty which under Regulation 4 is through execution of bond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the respondents since February, 2011 and apparently nearabout two years have elapsed from the date when the aforesaid goods were retained by the department. In these circumstances, there appears to be no justification for asking bond and bank guarantee for Rs.38,25,658/- from the petitioner. The amount which could have been demanded from the petitioner should be 20% of the provisional assessment duty and for remaining duty, a bond with or without surety or security or both could have been asked from the petitioner. In view of aforesaid, it is apparent that order Annexure P/10 is contrary to the Regulations 2 and 4 and deserves modification by this Court. We could have remitted the matter to the respondents for passing another provisional assessment order, but looking to the fact that the goods are lying with the respondents since February, 2011, we propose to modify the order in following terms:- (1) The petitioner herein is directed to deposit 20% of the provisional assessment duty Rs.9,65,585/- in cash or by way of demand draft as the case may be. For remaining amount of duty of Rs.9,65,585/-, petitioner shall furnish a bond alongwith bank guarantee to the respondents. F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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