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TMI Blog2022 (2) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... the Fe content is more than 63.99% but when it is proved that the Fe content was much below the threshold, naturally the PD bond will have no effect and the same stood cancelled. This is just the starting point, the same requires the finalization of the provisional assessments since the actual duty liability is involved and hence adjudication has to take place to determine the same. The requirement of law is that a provisional assessment, if treated as such, shall be treated as provisional for all practical purposes. The statute mandates the passing of the final assessment since a provisional assessment will have to be taken to its logical conclusion, by passing a final assessment order after obtaining necessary information or any repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into a contract with overseas buyers for supply of fines/lumps and one of the conditions of the purchase contract between the appellant and the foreign buyers was that the export consignment was required to be subjected to certain tests to determine iron (Fe) and moisture content and thereafter determine the weight of dry quantity of ore by reducing the moisture percentage. 2. It is the case of the appellant that it had declared the moisture percentage @ 9% at the loading port i.e Mangalore and when the same was tested at the recipient s end i.e. the foreign buyer, they have reported the moisture content to be in excess of 0.5% than the declared percentage. For this, the appellant was required to return proportionate advance money rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 shipping bills. As per the export services, moisture content of the export consignments at the loading port was declared as 9%. The appellant was required to furnish provisional duty bonds (PD) binding himself to the fine and penalty that may be imposed in adjudication proceedings. The test report furnished by the foreign buyer reported the moisture content in excess of 0.5%. The purchase agreement made it mandatory for the appellant to return proportionate sum of money which resulted in downward revision of the transaction value. The excess payment as above was ₹ 2,23,696/- (Rupees Two Lakhs Twenty Three Thousand Six Hundred and Ninety Six only) and ₹ 54,84,958/- (Rupees Fifty Four Lakhs Eighty Four Thousand Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackdrop of Foreign Trade Policy Regulations and that since the test reports indicated the Fe content in the iron ore exported to be less than 63.99%, there was nothing left to the lower authorities to initiate any action in terms of the FTP and hence, the PD bonds were cancelled and returned to the exporter on 04/03/2009 and 23/03/2009 itself. This was also for the reason that there was no ground for the lower authority to impose penalty and fine and hence, she would submit that the provisional assessment stood finalized. 5. Heard both sides and we have gone through the documents placed on record as well as various case-law referred to during the course of argument. 5.1. We have gone through the copies of PD/test bond as on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional assessment of Duty; sub-section (4) incorporates the refund, if any, to be granted, within three months from the date of assessment of Duty finally and subsection (5) refers to unjust enrichment, which is not the case here since the Revenue has never alleged about unjust enrichment. From the above, it is clear that the statute mandates the passing of the final assessment since a provisional assessment will have to be taken to its logical conclusion, by passing a final assessment order after obtaining necessary information or any report or any other document that the Officer may require, as prescribed under Section 18(1) ibid.It is also for the reason that a provisional assessment is in the nature of an interim order, which is not en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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