TaxTMI 
TaxTMI 
2018 (1) TMI 1118
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....f interest from the Petitioners and Impugned Letter dated 30.11.2017 issued by Respondent No.3 thereby dismissing the Miscellaneous Application filed by the Petitioners as nonmaintainable; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, under Article 226 of the Constitution of India ordering and directing that: (i) interest is not payable in cases of provisionally assessed Bills of Entry, when the complete differential duty has been paid prior to the finalization of the assessment and (ii) Respondent No.3 has power to issue clarifications, even after passing of Final Order under Section 127C(5) of the Customs Act, 1962;" 2. The consequential prayer is of a writ of mandamus or any other writ or direction in the nature thereof, directing the respondents, their servants, officers and agents to refrain from recovering interest on the differential duty of Rs. 79,65,52,147/paid in respect of the provisionally assessed Bills of Entry in pursuance of the impugned letter dated 10th April, 2017 issued by the 2nd respondent. 3. Since extensive arguments have been canvassed and ....
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....show cause notice, differential duty and interest demands were raised against the petitioners with respect to both, finally assessed Bills of Entry as well as provisionally assessed Bills of Entry, but total duty demanded, according to the petitioners, is 370,56,79,329/­. 10. The petitioners claimed that in order to show their bonafides, they deposited Rs. 300,00,00,000/­ prior to the issuance of the show cause notice itself. After the show cause notice was issued and duly received, the petitioners deposited Rs. 70,56,79,329/­ towards differential duty demanded and Rs. 114,54,59,876/­ towards interest payable on the differential duty demanded under Section 28AA of the Customs Act, 1962. 11. The petitioners then approached the respondent no.3Commission and sought settlement of the issues and disputes under the show cause notice dated 25th April, 2016. The petitioners claim that in their application, they clearly stated that they have paid the following sums: Amount paid Paid towards Rs.370,56,79,329/­ Differential duty demanded in respect of the finally assessed Bills of Entry and the Provisionally assessed Bills of Entry. Rs.114,54,59,876/&s....
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....hy; are held liable to confiscation. However, since the same are not available for confiscation, no redemption fine is imposed. 8.5 Prosecution: Subject to payment of dues as adjudged above, full immunity from prosecution under Customs Act, 1962 is granted to the applicant/co­applicants so far as this case is concerned. 9. The above immunities to the applicant/co­applicants are granted under Section 127H(1) of the Act. Their attention is also invited to the provisions of sub­section (2) and (3) of Section 127H ibid. This order shall be void and immunities withdrawn if the Bench, at any time finds that the applicant had concealed any particular material from the Commission or had given false evidence or had obtained this order by fraud or misrepresentation of facts. 10. This order settles the case of the applicant and Coapplicants herein only. The Adjudicating authority is free to take action against the other Noticees to the Show Cause Notice as per law. 11. A copy of this order is given to the applicant/coapplicants and Jurisdictional Commissioner for their use in the implementation of this order. No one should use this order in any other manner or for any ....
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....cerely, Sd/­ (Dr UMAIR MIR) DEPUTY DIRECTOR, DRI, NHAVA SHEVA. Encl­ as above Copy for information to:­ The Senior Investigating Officer, Settlement Commission, Customs, Central Excise & Service Tax, Additional Bench, Mumbai." 16. It is this communication which is challenged on several grounds. It is contended that the petitioners paid the duty alongwith interest before filing the application seeking settlement. No interest was admitted and paid by the petitioners for the duty demanded in respect of the provisionally assessed Bills of Entry. This is clear from Sr. No.10 of the form of application filed before the Settlement Commission at pages 161 and 162 of the paper book. By relying upon the language of Section 127B(1) of the Customs Act, 1962 and the first proviso (c) thereto, it is urged that any applicant before the Settlement Commission is required to deposit the additional amount of customs duty accepted by him alongwith interest due as condition precedent. Only then the application can be admitted before the Settlement Commission. The Settlement Commission admitted the application by order dated 16th September, 2016. The Commission di....
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.... of the Settlement Commission in seeking to reopen the case by contending that the petitioners are liable to pay interest on the differential duty found payable on finalization of the Bills of Entry by the Settlement Commission. 18. Alternatively and without prejudice, it is argued that if by para 8.2 of the order of the Settlement Commission it purports to direct the payment of interest on the differential duty on account of finalization of the assessment of 187 Bills of Entry, then, the petitioners are entitled to challenge that order to that extent in this Court. 19. For all these reasons, he would submit that the Writ Petition be allowed. 20. Mr. Sridharan has relied upon the language of Section 18 of the Customs Act, 1962 and Section 28AA of that Act. He also brings to our notice the relevant portions of the amendments brought to the Customs Act, 1962. He invites our attention to a document styled as 'Budget Changes 2016­2017', which is nothing but an extract from the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi's communication enlisting the changes in Customs and Central Excise Law an....
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....gned letter. We have already reproduced it in the foregoing paragraphs. This letter refers to the final order of the Settlement Commission dated 2nd March, 2017 on the application of the petitioner and the other applicants. This communication also refers to the receipt of the pay orders towards penalties imposed on the petitioner and the other applicants and the deposit thereof in the Government Treasury. The communication relies upon para 8.2 of the order of the Settlement Commission wherein a direction was given by the Settlement Commission to the Revenue to verify the applicable interest payable. The communication says that the interest of Rs. 114,54,59,876/­ paid, was payable on the differential duty arising out of the Bills of Entry finally assessed at the time of clearances. Interest on the differential duty of Rs. 79,66,52,147/payable on provisionally assessed 187 Bills of Entry has not been paid. True it is that by the order of the Settlement Commission, the 187 Bills of Entry have been finally assessed. It is, therefore, the request of the Revenue that the petitioner should deposit the interest payable on the differential duty of Rs. 79,65,52,147/­ on the provision....
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....lumn (o) of the said annexures. Consequently, differential duty in respect of these imports as detailed in the above annexures, totally amounting to Rs. 79,65,52,147/­ is payable by the petitioner under the provisions of Section 18(2) of the Customs Act, 1962. The Commission then summarizes the computation and calculations in relations to the demand at internal page 14 of its order. 25. In paragraph 3 of its order, the Commission refers to the submissions of the applicants. Then, at internal page 17 (running page 199) para 4, the Settlement Commission holds that these applications were allowed to be proceeded under Section 127B of the Customs Act, 1962 by orders of the Commission dated 16th September, 2016. Then, the Commission refers to the report of 20th October, 2016 filed on behalf of the Revenue and in which the Revenue says that the applicant Company has paid entire duty of Rs. 370,56,79,329/­ demanded in the show cause notice. They have also paid an amount of Rs. 114,54,59,876/­ towards interest payable on the said differential duty amount. Paragraph 5.1 of the order of the Settlement Commission reads as under : "5.1 The applicant company has paid the entir....
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....le by the petitioner, should be deposited by the petitioner within 30 days of receipt of that order. 30. Pertinently, Revenue does not do anything in order to verify the applicable interest on the settled amount and balance, if any, payable by the petitioner. 31. The direction in paras 8.1 and 8.2 of the operative order has to be noted and reconciled with para 5.1 of the order of the Settlement Commission which we have reproduced above. Thus, the differential duty was computed in the above sum. The interest also, which has been paid, was directed to be verified. The Revenue in the report had already indicated that this figure prima facie appears to be correct. Any discrepancy found in the calculation will follow the natural course of intimation to the Commission separately. Pertinently, the Revenue made no communication with the Commission intimating discrepancy in the calculation. Thus, the calculation and computation was directed to be verified. We do not see any substantive issue, and particularly of the nature highlighted in the impugned communication/letter, could have been surviving for adjudication after such comprehensive order of the Commission. The impugned letter d....
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....certainment which is in his power to produce or furnish, and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. Where the self­assessment is correct, the question does not arise, but when it is not done correctly, then the proper officer, without prejudice to any other action which may be taken under the Customs Act, 1962, re­assess the duty leviable on such goods. Then follows the eventuality of re­assessment and that is set out by Sub­sections (5) and (6) of Section 17. Thus, any disagreement with the self­assessment or any contravention of the self­assessment by the importer in such reassessment necessitates passing of a speaking order within the time stipulated by Subsection (5). By Sub­section (6), the consequences of not doing reassessment or not passing a speaking order have been set out. Then, there is an explanation appearing in this Section. 34. Section 18 deals with provisional assessment of duty and opens with a non­obstante clause. That is, where the importer or the exporter is unable to make self­assessment under Sub­section (1) of Section 17 and makes a request in ....
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....we see no justification for the Revenue now demanding interest on the differential duty. Everything that was payable, including duty and interest, is subsumed in the order of the Commission. That is clear, according to us, and there was never any ambiguity or error noted in the same. What we find interesting is, in response to this Petition, it is in the affidavit­in-reply that the Revenue refers to the communication. The Revenue, namely the Directorate of Revenue Intelligence, addresses a communication to the Assistant Commissioner, Customs and Central Excise Settlement Commission, Additional Bench, Mumbai. There, it makes reference to the impugned letter and with a copy marked to the Commission. After it refers to all the operative directions, the Commission's attention is invited to Subsection (3) of Section 18. In para 4.2.1 of this communication, the Revenue says that the 187 Bills of Entry assessed provisionally, have now stood finally assessed under the impugned order of the Settlement Commission. Though the petitioner has paid differential duty of Rs. 79,65,52,147/­ on the provisionally assessed 187 Bills of Entry, they have not paid interest on the said differe....