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TMI Blog2016 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT, NEW DELHI] by my learned brother, Member(T) in my opinion is misplaced as the provisions of Section 28AA and Section 28AB are not invoked. On appreciation of facts, it is clear that there is no violation of Section 47(2) of the Act. The liability to pay interest cannot be assumed. - Decided against the revenue. - C/150/2007-DB - Final Order No. A/20417/2016 - Dated:- 8-6-2016 - Archana Wadhwa, Member (J) And Ashok K. Arya, Member (T) For the Appellant : Mr N Jagdish, DR For the Respondent : Mr K S Karanth, Adv ORDER Per Ashok K Arya Bath the parties have been heard in full. 2. The matter concerns the liability to pay interest on the differential duty of the customs which was paid by the respondent namely M/s. Ruchi Soya Industries Ltd. after 103 days from the date due to be paid to the national exchequer. 3. This appeal has been filed by the Commissioner of Customs, Visakhapatnam against the impugned order passed by Commissioner (Appeals). It is pointed out that originally the Deputy Commissioner of Central Excise and Customs, Kakinada Division had confirmed the liability of payment of interest of ₹ 6,96,558/- (Rupees Six Lakhs Ninety Six T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and the submissions made by both the parties we are of the considered view that the respondents are liable for the payment of duty of customs at the enhanced rates i.e. the rate of duty which was prevalent on 21.11.2000, when the new notification(s) had been issued regarding which there is no dispute. When the respondents have not paid the said duty amount with reference to the enhanced rate of duty in spite of the reassessment of the subject bill of entry as per the rates prevalent on the relevant date for determination of rate of duty as per Section 17 of the Customs Act, they are liable to pay the interest for the delay in making the payment of the differential duty payable as per law. 9. The original adjudication order passed by the Deputy Commissioner confirmed the demand of interest against the respondents wherein he has referred to Section 47(2) of the Customs Act and the provisions of Section 28 of the Customs Act in his discussion and findings portion of the order; he has also imposed a penalty of ₹ 10,000/- (Rupees Ten Thousand only) for this delay in payment of differential duty and for non-payment of interest in violation of the provisions of Section 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared quantity of RBD Palmolein (edible grade) on 20.11.2000. As the rate of duty on the goods on that date was 35% ad valorem , the Bill of Entry was assessed by the Customs officers with the duty liability of ₹ 1,62,40,718/-. The appellant paid the said assessed duty on 20.11.2000 and the requisite order in terms of the provisions of Section 47(1) of the Customs Act for clearance of the goods for home consumption was made on 23.11.2000. 15. However, vide a subsequent Notification No. 142/2000-Cus dated 21.11.2000, the effective rate of Basic Customs Duty on RBD Palmolein was enhanced from 35% to 65%. Inasmuch as the Entry Inwards of the vessels loaded with the imported goods was granted on 21.11.2000, the said enhanced rate of duty was applicable to the goods in question, in terms of the provisions of Section 15 of the Customs Act, 1962. The said facts of enhancement of rate of duty did not come to the notice of the Customs officers, who passed the out of charge' order on 23.11.2000 and the goods were accordingly cleared by the respondents. 16. Subsequently, a letter was issued to the importer on 24.11.2000 and they were directed to pay the differential duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty stands paid, orders for clearance of the cargo are issued under Section 47 and the cargo is cleared, the provisions of Section 47 stop having any applicability. As the respondents have deposited the assessed duty in terms of the provisions of the said section, and there was no late payment of duty so assessed by the Customs, no demand for interest can be raised under Section 47(2) of the Act. 20.For better appreciation of the provisions of Section 47, I reproduce the same. 47. Clearance of goods for home consumption - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. (2) Where the importer fails to pay the import duty under sub-section (1) within two days (excluding holidays) from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at [such rate, not below [ten per cent] and not exceeding thirty six per cent per annum, as is for the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in Section 17 of the Act that an importer must pay the duty so reassessed within a period of 2 days from the date of communication of such reassessment. It is not the department's case that the imported goods, in question, were still in the Customs' charge and had not been ordered to be cleared for home consumption under Section 47(1) and the subject Bill of Entry, after its re-assessment, had been returned to the importer on 24.11.2000 for payment of reassessed duty the payment of which was delayed beyond 2 days there from. I find no infirmity in the above reasoning of the Commissioner (Appeals) inasmuch as there is no ambiguity in the language of the Section 47(2) of the Customs Act and reading of the same clearly supports the above reasoning of the above appellate authority. 22. It is further seen that the Commissioner (Appeals) has also taken into account the provisions of Section 17 of the Customs Act, 1962 and has concluded as under: 15. It is significant to note that provisions of Section 17(4) and Section 47(2) of the Act are mutually exclusive to each other. The provisions of Section 47(2) cannot possibly be involved in all cases of re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.11.2000 and the subject imported goods had already been ordered to be cleared for Home Consumption under Section 47(1) ibid on 23.11.2000 itself. Under such circumstances, I find ample force in the appellants' contention that after having given out of charge' by the Customs Authorities the subject Bill of Entry could not be reassessed under Section 17. But the demand of differential duty / interest could still be raised under Section 28 (1) of the Act. There is no other provision under the Act by which differential duty, resulting out of any reassessment under Section 17 ibid could be demanded. I have already discussed in the foregoing paragraphs that provisions of Section 47 (2) ibid, could not be pressed into service in the present case for the purpose of recovering interest. The provision of Section 47 applies to the first time assessment of customs duty while filing the Bill of Entry. Once, the Bill of Entry is assessed, duty has been paid and the out of charge order is given, any subsequent demand could be sustained only under Section 28(1) of the Act. 17. It may be appreciated that the only provision, under which interest on delayed payment of duty could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was not justified. The Revenue's appeal is, accordingly, rejected. ( Pronounced in the open court on 13.10.2015 ) DIFFERENCE OF OPINION Whether the appeal filed by the Revenue has to be allowed, as held by the Member (Technical) or the same has to be rejected as held by the Member (Judicial). [Order per: Sulekha Beevi, C.S .] 1. This difference of opinion was referred to be as per order of Hon ble President of resolving the following point of difference, which arose between members while deciding the above appeal. The point of difference is Whether the appeal filed by the revenue has to be allowed, as held by the Member (Technical) of the same has to be rejected as held by the Member (Judicial) . 2. The facts with relevant dates having been narrated by the learned Member(J), I do not wish to repeat the same. The issue is whether respondents are liable to pay interest on the differential duty. The letter directing to pay the differential duty of ₹ 1,02,84,944/- was issued to respondents on 24-11-2000. The show cause notice alleges contravention of provisions of Section 47(2) of Customs Act, 1962, and proposing demand of interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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