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TMI Blog2018 (4) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... on the amount of duty for the delayed period - In the present case, it is not in dispute that the bill of entry was filed on 23.10.2007 and after assessment, within five days, i.e. on 24.10.2007, the duty was paid. Thus, there was no delay in discharging the duty after assessment under Section 47 of the Customs Act, 1962 - interest cannot be levied for the period 13.02.2007 to 23.10.2007. Appeal allowed - decided in favor of appellant. - Appeal No. C/10785/2016-SM - Final Order No. A/ 10581/2018 - Dated:- 27-3-2018 - Dr. D. M. Misra, Member ( Judicial ) For the Appellant : Mr./Mrs. A.Shreerazi, Dimple Gohil ( Advocate ) For the Respondent : Mr. J Nagori ( A. R. ) ORDER Per: Dr. D.M. Misra This is an appeal filed against Order-in-Appeal No. AHD-CUSTOM-000-APP-352-15-16 passed by Commissioner of Customs (Appeals), Ahmedabad. 2. Briefly stated the facts of the case are that M/s Essar SEZ Hazira Ltd., a developer of Essar Special Economic Zone, Hazira, imported 597 pieces of Steel Sheet Piles for authorized operations i.e. construction of jetty within SEZ area for which necessary permission was granted by the Development Commissioner, Kandla SEZ Gandhid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where an entrepreneur or a developer commits any default and the consequences that would follow. The appellant is neither an entrepreneur nor a developer, therefore, this Rule is not applicable. Further, referring to Rule 47(4) of SEZ Rules, the Ld. Advocate has submitted that as mentioned in the said Rule, the assessment of goods sold to a DTA Unit should be made in accordance with Customs Act and the Rules made thereunder, should be understood in the sense that the sales made to the DTA should be on payment of Customs duty determined under Section 30 of SEZ Act. Therefore, Rule 47 of SEZ Rules is subject to the Provisions of Section 30 of SEZ Act. Further, he has submitted that the Proviso to Rule 34 of SEZ Rules lays down that the goods can be disposed of by a Unit in the SEZ to a DTA Unit on payment of applicable duties alone. He submits that in compliance with the said Provisions, the appellant had paid the applicable duty of Customs amounting to ₹ 3,20,52,673/- and it is not in dispute. 4. Referring to the judgment of the Hon ble Supreme Court in the case of India Carbon Ltd. and Ors. Vs. State of Assam (1997) 6 Supreme Court Cases 479 and Hon ble Bombay High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e SEZ. Thus, the goods has to be treated as cleared for home consumption from the date of importation into SEZ and accordingly, the provisions of Customs Act, 1962 is applicable to the present case. Accordingly, interest under Section 47 of Customs Act,1962 is required to be discharged from the date of importation into SEZ by treating the same as cleared for home consumption from very same date. Further, emphasizing his argument, it is submitted that the goods were assessed to nil rate of duty subject to laid down conditions and since the imported goods were not utilized for the purpose for which it was imported, the duty forgone at the time of import has to be refunded along with interest. The assessment of bill of entry was made on 13.02.2007 and duty was not paid at that time, therefore, interest as per Section 47 of Customs Act, 1962 is required to be paid. Citing an example, Ld. AR for the Revenue has submitted that in the case of imports made by EOU or under advance authorization, when the goods are imported for a specific use under an exemption Notification and if the goods are not used for the intended purpose, customs duty along with interest is payable from the date of im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 Where an entrepreneur or Developer does not utilize the goods or services on which exemptions, drawbacks, cess and concessions have been availed for the authorized operations or unable to duly account for the same, the entrepreneur or the Developer, as the case may be, shall refund an amount equal to the benefits of exemptions, drawback, cess and concessions availed without prejudice to any other action under the relevant provisions of the Customs Act, 1962, the Customs Tariff Act, 1975, the Central Excise Act, 1944, the Central Excise Tariff Act, 1985, the Central Sales Tax Act, 1956, the Foreign Trade (Development and Regulation) Act, 1992 and the Finance Act, 1994 (in respect of service tax) and the enactments specified in the First Schedule to the Act, as the case may be: Provided that if there is a failure to achieve positive net foreign exchange earning, by a Unit, such entrepreneur shall be liable for penal action under the provisions of Foreign Trade (Development and Regulation) Act, 1992 and the rules made there under. 34. Utilization of goods The goods admitted into a Special Economic Zone shall be used by the Unit or the Developer only for carrying out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Ltd. Vs. CTO (1994) 4 SCC 276 observed as: 7. The proposition may be derived from the above: interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf. 11. Thus, under the SEZ Act and the Rules made thereunder, there is no substantive provision for charging interest. I find that the interest on the customs duty determined and paid in accordance with Section 30 of SEZ Act,2005 has been demanded and confirmed under Section 47 of the Customs Act, 1962. Therefore, it is also necessary to read the said provision, which is reproduced as below: SECTION 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 take an order permitting clearance of the goods for home consumption. [Provided that the Central Government may by Notification in the Official Gazette permit certain class of importers to make deferred payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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