9911796707
TMI Blog2015 (12) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... and only). This order of original adjudicating authority was reversed by the impugned order passed by Commissioner (Appeals), Visakhapatnam. 4. The department/Commissioner of Customs, Visakhapatnam has filed this appeal against their Commissioner (Appeals)-order whereunder the demand of interest and the imposition of penalty against the respondent was not found sustainable in law. 5. Briefly the facts are that the respondents had filed bill of entry on 20.11.2000and the bill of entry was assessed on the same day; but the vessel was granted entry in the port only on 21.11.2000 and on the said date i.e. on 21.11.2000 the duty on the subject goods was revised vide the Notification No. 142/2000-Cus. dated 21.11.2000 and 144/2000-Cus. dated 21.11.2000. The appellant (department) argues that as per Section 15 of the Customs Act the relevant date for determination of rate of duty in case of the bill of entry which had been presented before the date of the entry inwards of the vessel, it would be the date when the entry inwards is granted to the vessel carrying the goods. 6. The law of the Customs is very clear regarding the relevant date for determination of rate of duty as given in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T 97 (Tri. -Del.)] saying that statutory interest is always attracted and it is automatically payable wherever there is a delay in payment of duty. It is pointed out that the case law quoted namely Ajanta Tubes Ltd. Vs. CCE, Meerut-II (supra) by the department is in respect of the facts of central excise but the ratio of the decision regarding liability of interest, wherever there has been delay in payment of duties to the national exchequer would be applicable to the facts of the present case also. 11. This is a case where the respondents have deliberately delayed the payment of differential duty of customs though it was payable to the national exchequer immediately i.e. as soon as the goods were released for home consumption. When the respondents knowingly and deliberately delayed the payment of differential duty of the customs they cannot claim any defense that they are not liable to pay any interest in this situation. When they delayed the payment of differential duty of customs as per the CESTAT's decision in the case of Ajanta Tubes Ltd. (supra) , for the period of delay they are liable to pay the interest for the said period of delay. The provisions of Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65% and quantifying the duty on the said account as also on the excess discharged cargo amounting to Rs. 1,02,84,944/-, on 12.3.2001. The respondents, in fact, admitted their excess duty liability and accordingly, wrote to the department that they would be depositing the same. In fact, they made part payment of Rs. 25 lakhs during the first week of December 2000 itself which was rejected by the Revenue on the ground that they should pay the entire duty in one go as there is no provision for part payment of duty under the Customs Act. Ultimately, the total differential duty of Rs. 1,02,84,944/- was paid by the respondents on 10.3.2001. 17. The dispute in the present appeal relates to payment of interest and imposition of penalty upon the respondents. They were issued a show-cause notice dated 3.4.2001 alleging contravention of provisions of Section 47(2) of the Customs Act, 1962 and proposing interest of Rs. 6,96,558/- under Section 28(1) of the Customs Act as also proposing imposition of penalty under Section 117 of the Customs Act. The said show-cause notice culminated into an order passed by the Deputy Commissioner confirming the interest and imposing penalty of Rs. 10,000/-. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases where importer has not paid the import duty assessed in terms of sub-section (1) of Section 47 within a period of 2 days from the date on which the assessed Bill of Entry is returned to him for payment of duty. In the present case, the respondent has admittedly paid the duty within a period of 2 days from the date of assessed Bill of Entry and there is no dispute about the same. I find no justifiable reason to confirm the interest against the importer for alleged contravention of Section 47. 21. The Commissioner (Appeals) while dealing with the said plea of the assessee has accepted the same by observing as under : "9. It is to be seen that the present case the subject Bill of Entry was admittedly finally assessed to duty at Rs. 1,62,40,718/- and the appellants had paid the above amount of duty on 20.11.2000 and the requisite order to clear the goods for Home Consumption under Section 47(1) of the Act was made on 23.11.2000 itself. Hence, there is no case for the department to allege any delay in payment of duty so assessed. The provisions of Section 47(2) ibid could possibly be pressed into service only if there was a case of delay in payment of duty beyond 2 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry has been returned to the importer for payment of reassessed duty and the importer has failed to pay the reassessed duty within the prescribed time limit of 2 days from the date of return of such Bill of Entry. Once, the goods are finally assessed to duty and the duty so assessed has been paid by the importer and 'out of charge' order under Section 47(1) ibid, has been given by the proper officer, there is no room for reassessing the Bill of Entry under Section 17(4) and recover interest by alleging contravention of Section 47(2). Of course, any short levy or short payment of duty or interest etc. can be recovered in the manner prescribed under Section 28 of the Act." On going through the above discussion and the interpretation of Sections 17 & 47 of the Customs Act, I find myself in full agreement with the appellate authority. Once the goods have been finally assessed for duty under Section 47 and such duty stands deposited by the importer and the goods stands cleared, the provisions of Section 17 could have no applicability. Otherwise also, I find that the Commissioner (Appeals) has taken note of the fact that the Bill of Entry was modified by way of an endorsement which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. It is an undisputed fact that no demand of differential duty under Section 28(1) was ever issued to the appellants and also no formal order under Section 28(2) of the Act determining the liability of differential duty was ever passed by the competent authority. Hence, no question arises for recovery of interest under Section 28AA. Similarly, the provisions of Section 28AB could be made use of only in the cases of short levy / short payment etc. resulted by reasons of collusion, fraud, willful mis-statement or suppression of facts etc. These elements were not alleged in the present case. Hence, the provisions of Section 28AB also had no application on the relevant date. It is needless to mention here that the SCN impugned before the adjudicating authority did not invoke the provisions of Section 28AA or Section 28AB." 23.The above observations made by the Commissioner (Appeals) are very relevant, keeping in view the factual position. There was admittedly a short levy of duty, but instead of issue a show-cause notice for such levy in terms of Section 28 of the Act, the Revenue adopted a route of addressing letters to the respondents who deposited the differential duty. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
