9911796707
TMI Blog2014 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to provisional assessment. When the final assessment resulted in enhancement of the value of the import, additional duty liability arose. That liability remained undisputed by the appellant. The only question came for decision by the Tribunal in this appeal is whether interest shall be levied on the differential duty in respect of provisional assessments made before 13.07.2006 but finalised on 18.07.2011. 3. On the aforesaid dispute, further contentions of the appellant are as under: (1) Interest under Section 28AA cannot be levied on finalisation of provisionally assessed bills of entry filed prior to 13.07.2006, i.e., prior to amendment of section 18 of the Customs Act, 1962 since making of assessments on provisional basis and finalization thereof is governed by the provisions of Section 18 of the Act. (2) Section 18(1) of the Act provides for assessment of the goods on provisional basis. Section 18(2) provides for provisional assessment. Sub-Sections (3),(4) & (5) to Section 18 of the Act prescribe levy of interest on duty liability and paying interest on refund as the case may be arising consequent upon finalisation of assessment after 13.07.2006. provision in those s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yal Traders 2014 (302) ELT 529 (Guj.) held that sub-section(3) does not have retrospective application either specifically or by necessary implication. Therefore provisions of Section 18(3) of the Act, have no application to the present case and the Assessment Order demanding payment of interest is liable to be set aside. (7) It was clarified by the Ministry of finance, Central Board of Excise & Customs vide F. No. 354/66/2001-TRU dated 21.06.2001 that the provisions relating to charging of interest or for allowing refund will apply only to cases in which provisional assessment is resorted to on or after 01.07.2001 and not to past cases of provisional assessment even if the assessment are finalised on or after 01.07.2001. It is submitted that the provisions of sub-section (3) and (4) of Section 18, which were inserted on 13.07.2006, vide section 21 of the Taxation Laws (Amendment) Act 2006 are also on similar line. Therefore, similar interpretation ought to be given to these provisions also and no interest is payable on the demand arising on finalization of provisional assessments where the provisional assessments were made prior to 13.07.2006. (8) In the case of commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no dispute of the fact about the import and the date of provisional assessment as well as date of finalisation thereof. Provisional assessments were completed on 18.02.2005 and finalisation thereof was made on 18.07.2011. Sub section 18(3) of Customs of the Act authorising recovery of interest came to the statute book on 13.07.2006 which reads as under: (3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order 8[or re-assessment order] under sub-section (2), at the rate fixed by the Central Government under section28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. 8. While provisional assessment was completed on 18.02.2005 above sub-section was not in the statute book. The date on which duty liability arises under law is prescribed by section 15 of the Act. According to that section in the case of goods entering for home consumption under section 46 of the Act, the date of presentation of bill of entry shall be the date to determine the rate of duty applicable. Accordingly, the duty liability arose in case of imports made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated. (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p. 392) 11. Where a statute is passed for the purpose of supplying an obvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if an Act is declaratory or explanatory, it has to be construed as retrospective.(p. 2487). 15. The above rule of interpretation guides to hold that when subsection (3) was not in force on the date of filing of Bills of entry nor existing even on the date of finalisation of provisional assessments, but was enacted on 13.07.06, that shall have no application to the case of the appellant for the reason that it is, by now, well settled that the statutory amendments, either creating fresh liability hitherto not existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. Hon'ble High Court of Gujarat in the case of CC(preventive) v. Goyal Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
