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TMI Blog2019 (2) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... or a contract or trade usage. In the instant case, the claim for payment of duty is supported not only by the statutory provisions of Sections 28AA and 28AB, but also the terms of the statutory policy and the legal undertaking provided, by the petitioner in accordance with the same. In terms of DGFT policy circular No 9/2003 dated 22.05.2003, for licenses issued prior to the date of Circular, interest rate shall be 24% till the date of Circular and 15% from the date of Circular. Commissioner has in his order given the benefit of reduced interest rate from 13.05.2002, which is much prior to the date of issue of this circular. Hence order of Commissioner cannot be faulted on this account. In the present case the demand for interest was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted a bond as required, binding themselves to pay interest @ 24% on the duty saved, in the event of their failure to fulfil the export obligations 2.2 They failed to fulfill the export obligation. Accordingly proceedings were initiated against them for recovery of the of the duty saved along with the interest due. The matter was finally adjudicated by the tribunal against the appellants by order No A/7/WZB/05-CII dated 5.11.2004, confirming recovery of duty to the tune of ₹ 1,99,28,722/- along with interest. Duty has been recovered from the appellants by way of encashment of bank guarantee of ₹ 1,10,00,000/- and by way of payment in cash to tune of ₹ 89,28,722/- (Rs 75,00,000/- Cash No 216 dated 18.02.2010 and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the matter was listed for hearing none appeared. None has appeared on behalf of appellant s on earlier hearing also, i.e. on 6.08.2018, 9.10.2018, 20.11.2018 and 03.01.2019. While adjourning the matter on 20.11.2018 bench recorded Adjourned to 03.01.19. Registry to ensure issuance of notice through AR and self. Notice for hearing issued on 26.11.2018 was sent through post and also through department for service on appellant. Even then party was not present during the hearing or had made any further request for adjournment. 4.2 We have heard Shri Roopam Kapoor, Principal Commissioner (Authorized Representative) in the matter. He submitted that interest has been rightly and correctly demanded from the appellants in view of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28AB deals with interest on delayed payment of duty in special cases and inter alia provides that where any duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay duty as determined under sub-section (2) or has paid the duty under sub-section (2B) of Section 28, shall, in addition to the duty, be liable to pay interest at such rate not below 10% and not exceeding 36% per annum, as is fixed by the Central Government by notification. It is, thus, evident that duty determined as payable would earn interest in the event of a delay in the payment of the same. But for the exemption from payment of duty under the EPCG scheme, the petitioner would have been liable to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of actual payment. There is in that view sufficient legal sanction for the demand of interest raised against the petitioner on the amount of differential duty. Reliance upon the decisions of the Supreme Court in Indian Carbon Ltd. v. State of Assam, AIR 1997 SC 3054, JK Synthetics Ltd. v. Commercial Taxes Officer, AIR 1994 SC 2393, M/s. VVS Sugars v. Government of Andhra Pradesh and Others, AIR 1999 SC 2124 and York Knitwear Ltd. v. Asst. Collector of Customs Ors., 2006 (206) E.L.T. 86 (Del.) = 2005 (117) DLT 554 are of no avail to the petitioner. Claim for interest, it is fairly settled, can arise either on the basis of a statute or a contract or trade usage. In the instant case, the claim for payment of duty is supported not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 13.05.2002, which is much prior to the date of issue of this circular. Hence order of Commissioner cannot be faulted on this account. 5.4 In the present case the demand for interest was confirmed along with the demand for duty and hence demand of interest was made under the Customs Act, 1962. Further from the impugned order, it is quite evident that interest has to be calculated from the date of importation and not the date of issue of license. Since Commissioner has himself allowed for computation of interest from the date of importation, as claimed by the appellants we do not reason why the said issue has been agitated again in the appeal. 6. In the result appeal is dismissed. (Pronounced in court) - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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