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TMI Blog2024 (2) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... c) that there was no case of any willful misstatement or suppression of facts. The Appellant has also brought to notice yet another case in the case of COMMISSIONER OF CUSTOMS VIJAYAWADA VERSUS RUCHI SOYA INDUSTRIES LIMITED [ 2016 (7) TMI 88 - CESTAT BANGALORE] , wherein duty as assessed by the Customs Officer was paid by the importer on the very day as required under Section 47 of the Customs Act. However, because of the lag in time span between the day of assessment and that of entry inwards there was an enhancement in the rate of duty. The assessee however paid the differential duty as required under law and within the time specified. Upon reference to the Third Member it was held by the Tribunal that the importer in the said case was not liable to pay interest as the duty leviable under Section 47 of the Customs Act, stood duly discharged and there was no delay in payment thereof. The present case is somewhat similar, while in the cited case it was a change in the rate of duty in the time interlude between assessment and grant of entry inwards, in the present case it is a variation of duty rates that between the time of presentation of Bill of Entry and the enactment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 3(1) of the Central Excise Tariff Act, 1985 was 12% and not 6% as was self-assessed by them based on the EDI systems calculations. Thus CVD was short paid at the time of import to the tune of 6%. The appellants were therefore issued a Show Cause Notice which came to be adjudicated upon vide Order-in-Original No.KOL/CUS/Commissioner/11/ADJN(PORT)/2015 dated 16.02.2015 confirming the demand for short levied CVD besides also demanding interest under section 28AA of the Customs Act. 2. Against the aforesaid order of the Ld.Commissioner, the appellant is in appeal before us assailing the said order for the limited aspect of confirmation of the interest amount. 3. The contention of the Department is that the duty self-assessed under Section 17(1) of the Act by the Appellant was not in accordance with the provisions of the statute and therefore besides short paid duty amount, the appellant is also required to pay appropriate interest as aforesaid. The appellant contends that in the facts and circumstances of the case as the EDI system in itself indicated the CVD leviable @ 6% at the time of import they were therefore not liable to pay interest under Section 28AA of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 28 and such interest shall be calculated from the first day of the month succeeding the month in which the duty ought to have been paid or from the date of such erroneous refund, as the case may be, up to the date of payment of such duty. (3) Notwithstanding anything contained in sub-section (1), no interest shall be payable where, (a) the duty becomes payable consequent to the issue of an order, instruction or direction by the Board under section 151A; and (b) such amount of duty is voluntarily paid in full, within forty-five days from the date of issue of such order, instruction or direction, without reserving any right to appeal against the said payment at any subsequent stage of such payment.]. It be noted that sub-section 2 of Section 28AA mandates payment of interest at appropriate rates, to be paid by a person liable to pay duty in terms of Section 28. As the Appellant has sought refuge under Section 47 of the Customs Act stating that the short-payment in duty need to be considered as a case therein and not as covered with reference to short payment of duty under Section 28. Sub-section 1 of Section 47 as it then read is reproduced hereunder:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort levy in the present case, in no way can be attributed to the assessee s fault. Section 28AA calls for payment of interest on short levied duty amount due in terms of Section 28. We note that no sooner had the appellant been served with the Show Cause Notice, they paid the differential duty Even before the lower authorities as observed from the Order-in-Original, the appellant never disputed the short paid duty and only contested the payment of interest thereon. As it was not attributable (a) to any fault on their count, (b) that there have been no short payment of assessed duty, in terms of what the Customs EDI System foretold and (c) that there was no case of any willful misstatement or suppression of facts. The Appellant has also brought to our notice yet another case in the case of Commissioner of Customs, Vijayawada Vs. Ruchi Soya Industries Ltd. [2016 (339) E.L.T. 613 (Tri.-Bang.)], wherein duty as assessed by the Customs Officer was paid by the importer on the very day as required under Section 47 of the Customs Act. However, because of the lag in time span between the day of assessment and that of entry inwards there was an enhancement in the rate of duty. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 being fixed by the Central Government, by notification in the Official Gazette], on such duty till the date of payment of said duty. As is clear from the reading of the above provisions, sub-section (2) of Section 47 provides for interest in those cases 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. 8. In view of the fact that short paid duty amount was paid without demur or protest and in time, no sooner the Department brought the same to the importer s notice, besides the fact that duty short paid in the first instance, can in no way be attributed to any fault on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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