TaxTMI 
TaxTMI 
2015 (5) TMI 732
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....ods imported by the petitioners from Sri Lanka satisfying concessional rate of duty; and proceeding to have provisional assessment under Section 18 of the Customs Act, with liberty to have the goods released, on satisfaction of 35% of the differential duty as cash deposit. The ground of challenge is that, absolutely no insinuating circumstance, doubt or reason to believe is expressed anywhere in the impugned orders, but for the reference made to some enquiry going on with regard to the import made by some other trader from Sri Lanka. 3. With regard to the factual position, it is to be noted that areca nuts are normally leviable to duty @ 108%. But by virtue of the notification No. 26/2000 dated 01.03.2000, only 4% duty is leviable; if the areca nut is of 'Sri Lankan origin' and if the same is supported/substantiated on the basis of certificate of origin issued by the India-Sri Lanka Free Trade Agreement (ISFTA Agreement). 4. The petitioners herein purchased areca nuts of Sri Lankan origin from different traders in Sri Lanka as per Exts. P1 to P3 invoices issued in the last week of January 2015. Exts. P4 to P6 are the packing lists issued by the said dealers in Sri Lanka a....
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....ndition to satisfy the amount to an extent of 35% of the differential duty. Such a course, according to the petitioners, is possible only in the case of persons/transactions involving some doubt as to the consignment and that the ongoing enquiry against some other trader is not a ground to have similar course, in the case of the petitioners as well; which otherwise is liable to be termed only as an abuse to the provisions of law. The circumstances under which the provisional assessments can be made under Section 18 (1) (c) are sought to be explained with reference to the guidelines issued by a Division Bench of this Court, as per the judgment in W.A. No. 107 of 2011. The position is sought to be further explained with reference to the verdict passed by a learned Judge of this Court in W.P.(C) Nos. 2803 of 2015 and 5585 of 2013. 8. The learned standing counsel for the respondents/Customs Department submits that the course pursued by the respondents as per Sections 30 to 32 is very much in conformity with the observation made by the Division Bench of this Court in W.A. No. 107 of 2011 and that different circumstances are contemplated, under which such a course can be pursued. ....
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....@ 3.752 tons/hectare with world productivity of 1.287 tons/hectare." 9. The aforesaid data (that too, of the year 2003) however cannot lead to an inference that Sri Lanka is not an areca nut producing country. The particulars furnished by the learned standing counsel only reflect the position with reference to the major areca nut producers of world, where India is standing in the forefront among the seven named countries. No material is produced before this Court to hold that Sri Lanka does not produce any areca nut and hence that it cannot be termed as a place of origin, in so far as the import is concerned. 10. Coming to the scope of the provisional assessment under Section 18 (1) (c) of the Customs Act, it reads as follows : "18. Provisional assessment of duty.- (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained section 46 (a) ******* (b)****** (c) where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty leviable o....
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.... the party is the admitted duty which the party has to straightly remit. The duty provisionally determined is nothing but the duty which the Officer estimates over the duty admitted by the party as payable based on his estimation on the value, classification or the rate applicable, which is essentially a matter to be determined by the Officer. Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer / exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer. After remitting the duty in terms of the claim made by the party (admitted duty) and up to 20% of the provisional duty demanded by the Officer, the Officer is bound to collect security for the balance of the provisional duty which under Regulation 4 is through execution of ond supported by surety or security or both as the Officer deems fit. But we feel from the past follies of the Department stated by the learned Standing Counsel that the proper Officers provisionally assessing duty are under misunderstand....
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....faction of 20 % in lieu of 35 % of the differential duty. Such reduction was made by the learned Judge observing that, as per the relevant document issued by the High Commission of the Democratic Socialistic Republic of Sri Lanka and addressed to the Commissioner of Customs, Cochin, confirming the issuance of certificate of origin in respect of the goods that were imported by the petitioner therein. However, because of the incriminating circumstances, the matter was let to be enquired into, imposing 20% of the differential duty. 14. Coming to the instant case, particularly with reference to the contention that no incriminating circumstances are there to have doubted the transaction of the petitioners, it is to be noted that the respondents were proceeding with steps, to find out the origin of import with reference to the documents produced by the parties concerned, at different points of time, claiming it to be of Sri Lankan origin, in turn claiming the benefit of notification. It is to be borne in mind that the first petitioner herein was the petitioner in W.P.(C) No. 2803 of 2015, in whose case, a condition has already been imposed. The learned Judge of this Court directed to sa....