TaxTMI 
TaxTMI 
2008 (8) TMI 83
X X X X Extracts X X X X
X X X X Extracts X X X X
....principal issue involved is as to whether on the amount of duty payable on the warehoused goods at the time of clearance of warehoused goods, the interest is payable for the period from the expiry of the 90 days till the date of payment of duty or it is payable till the date of finalization of assessment of duty finally and clearance of the warehoused goods, in terms of provisions of Section 61(2)(ii) of the Customs Act, 1962. 3.1 The facts of the case in the Appeal No. C/143/07/MUM are that the Appellant deposited the goods into the warehouse on 23-4-2003, that were covered by 'Into bond Bill of Entry' No. 348470 dated 10-4-2003. The customs duty @ 25% + 16% CVD + 4% SAD was assessed, totalling to Rs. 19,60,62,265/-. The Appellant was asked on 27-9-2004 to deposit interest of Rs. 3,52,10,635/- on the duty, so as to consider request for extension of bond period. The Appellant by letter dated 27-9-2004 informed the bond department that they wished to pay duty on merit rate of duty and would also pay the interest applicable. Accordingly, on 29-9-2004 the customs duty of Rs.19,60,62,265/- was deposited and the interest on duty of Rs. 3,52,10,365/- was deposited on 27-9-2004. The duty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 (86) E.L.T. 464 (S.C.)] and held that the amount deposited on 29-9-2004 was duty in advance and 14-1-2005 is the date of final assessment and for quantification of payable interest on duty, interest up to this date is to be taken. The payable interest, thereby, was worked out to Rs. 3,47,09458/- (from 23-7-2003 to 14-1-2005) and Rs. 2,54,33,887/- (from 3-11-2003 to 14-1-2005) and after adjustment of amount deposited towards interest, further amount of Rs.12,63,249/- was determined as payable. The refund applications were dismissed. 4.1 An appeal was filed by the appellant before the Commissioner of Customs (Appeals), who also concluded that under Section 61(2)(ii), the interest is payable till the date of finalization of duty on the amount of duty payable on clearance of the goods. In support, the Commissioner of Customs (Appeals) placed reliance on the judgment of Hon'ble High Court at Bombay in the case of Siganporia Bros. v. Union of India [1993 (66) E.L.T. 606 (Bom.)]. 5. Being aggrieved, the Appellant are in appeal before this Tribunal. 6. For the appellant, the learned consultant Shri C.M. Sharma, would say that until 13-5-1994, the provisions of Section 61(1)(b) of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gh Court at Bombay is also not applicable because the said judgment considered the provisions of Section 61 prior to 1983 and after its amendment w.e.f. 13-5-1983 and amendment in Section 61 w.e.f. 23-12-1991. This judgment dealt with the case of import consignment that was warehoused on 20-1-1983 and sought to be cleared after 13-5-1983. The amendment brought about by the Act No. 32 of 1994 dated 13-5-1994 was not before the Hon'ble High Court and thereby the ratio of this judgment is not attracted. 6.2 Shri Sharma further submitted that- (i) Out of the amount deposited towards duty on 29-9-2004 of Rs. 19,60,62,265/- and Rs. 18,94,59,501/-, amount of Rs. 4,02,432,595/- and Rs. 3,88,77,687/- was refunded because the duty payable thereon was Rs. 15,58,29,670/- and Rs. 15,05,81,814/- respectively. (ii) The interest became payable on expiry of 90 days i.e. from 22-7-2003 and 30-11-2003 to 29-9-2004 on the duty of Rs. 15,58,29,670/- and Rs.15,05,81,814 /- respectively. (iii) Once the duty amount is deposited, with the Dept., thereafter in terms of Section 61(2)(ii) the interest does not become chargeable. (iv) The ratio of the case law in the case of M.J. Exports Pvt. Ltd. v. Unio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he sides as above and perused the records. 9. In the two appeals, the Appellant had deposited the amount towards duty on the "Ex-Bond Bill of Entry Home Consumption" and the rates of duty as were on the "Into-Bond Bill of Entry" were assessed on 29-9-2004 and duty was paid on 29-9-2004. The interest on this amount of duty was paid on 27-9-2004 and 29-9-2004 by way of challans prepared by Deputy Commissioner of Customs (Bond Dept.) The fact of payment of duty "Ex-Bond Home Consumption Bill of Entry" on 29-9-2004 is not in dispute. What is being disputed is that, the amount deposited on 29-9-2004 was "advance deposit of duty" and duty was assessed only on 14-1-2005 and thereafter, out of advance duty deposit, the duty payable was adjusted and excess deposited amount towards duty was refunded by the Order dated 18/25-1-2005. 10. The provisions of Section 61(2)(ii) of the Customs Act, 1962 as reproduced above clearly provide that interest is payable on the amount of duty payable at the time of clearance of the goods for the period from the expiry of the 90 days "till the date of payment of duty" on the warehoused goods. 11. The provisions do not distinguish between "advance duty" or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....payable when it is found that an assessee has wilfully violated any of the provisions of the taxing statute. Interest is ordinarily claimed from an assessee who has withheld payment of any tax payable by him and it is always calculated at the prescribed rate on the basis of the actual amount of tax withheld and the extent of delay in paying it. It may not be wrong to say that such interest is compensatory in character and not penal." As could be seen from the above enunciation in tax law, interest is ordinarily claimed from a person who has withheld payment of any tax payable by him to the Government.............." 14. The Appellant has rightly relied upon the judgments in the case of Biecco Lawrie Ltd. [2002 (139) E.L.T. 193 (Tri.)] (Para 4.1) and Hindustan Zinc Ltd. [1990 (49) E.L.T. 419 (Tri.)] (Para 6), and that it is settled law that so far as applicability of the provisions of Section 15 are concerned, these provisions are machinery provisions which provide for "relevant date for the payment of duty" in the case of warehoused goods. The duty may be paid on a particular date and once the duty payable with reference to that date has been paid, it has to be held that necessary....