TaxTMI 
TaxTMI 
2024 (3) TMI 508
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....g up new lines for manufacture of coated and uncoated paperboards. The said goods were imported vide seven Bills of Entry and duty concession as admissible for project imports at the time of ex bond availed. The said assessment was undertaken on provisional basis and requisite formalities in law discharged. Subsequently, during 2011-12 upon a query from the department about the status of the matter, the appellant informed that due to adverse market conditions and changes of technology, the said project could not be commissioned. The imported goods, lying as such, were therefore, reclassified under appropriate headings of CTH, 8441/8208 and 8413 and 8537(spares) (earlier classification of imported goods being under 9801 as project imports). It is not in dispute that the duty as liable on the imported goods subsequent to the final assessment has been duly paid by the appellant and a differential duty amount of Rs. 92,83,716/- was paid in pursuance of the order in original, passed by the learned Deputy Commissioner of Customs, Group 6 Arrear Cell vide orders dated 24 March 2014. Vide the instant order in appeal under challenge, the appellant in their appeal have agitated the direction....
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....nalization of the provisional assessment undertaken prior to the insertion of the said sub-section and if so on what quantum of duty- i.e. whether the differential duty is payable upon finalization on the entire duty leviable or only on the differential component of duty paid by the importer upon finalization of the goods and whether Section 18(3) would come into play for provisional assessments having taken place prior to the date of its insertion in the statute, i.e. to say if applicable, would it have a retrospective applicability. 6. A perusal of sub-section (3) of Section 18 shows that an assessee becomes liable to pay interest on the differential duty calculated at the time of final assessment at the rate fixed under Section 28AB of the Customs Act, 1962. It is a common principle of law that a legislation is always prospective in nature unless when by express words or by necessary implication the provisions are declared or construed to have retrospective effect. Thus, in the case of Binani Industries Ltd. Vs. CCT, (2007) 15 SCC 435. Hon'ble Supreme Court held as under: " 13. It is a cardinal principle of construction that every statute is prima facie prospective unless....
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....t several others. 7. Viewed in the backdrop, in the present case there are neither "express words" nor "necessary implication," made out to consider the said provision as retrospective. The provisions of sub-section 3 to Section 18 of the Act, (inserted on 13.07.2006 vide Section 21 of the Taxation Laws (Amendment) Act, 2006), therefore do not have any retrospective applicability. The amendment in law will thus have to be construed only prospectively i.e. its applicability will be only to such cases of provisional assessments as are made post the insertion of the said provision in the statute book and cannot be applied to cases of provisional assessments that were made or took place prior to it [Section 18(3)] being a part of the statute. 8. It would be noteworthy to point out that the amendment made in Section 18 of the Customs Act, 1962 w.e.f. 13.07.2006, vide Section 21 of the Taxation Laws (Amendment) Act, 2006, inserting sub-sections (3), (4) & (5) to Section 18, came up for consideration before the Hon'ble Gujarat High Court in the case of Commissioner of Customs Vs. Hindalco Industries Ltd., 2008 (231) ELT 36 (Guj.) in the context of applicability of the provisions of ....
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..... It is not possible to state that the provisions for payment of interest on duty short levied or entitlement to interest on duty paid in excess of the finally assessed duty can be considered to be clarificatory provisions and in the same vein the newly inserted sub-section (5) deserves consideration. Thus in effect upto 12-7- 2006 no provision existed in Section 18 of the Act which would permit revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon finalization of provisional assessment under Section 18 of the Act." (Emphasis Supplied) 9. Apart from the aforesaid, the learned representative for the appellant, in support of their contention on prospective leviability has placed reliance on the following cases: (i) Bhagyanagar Metals Ltd. Vs. Commissioner of C. Ex., Hyderabad-II 2016 (333) ELT 395 (Tri- LB) to hold as under: "45. We find that precedents referred to by Revenue are not applicable to the facts of the present case. In Commissioner of Trade Tax, Lucknow Vs. Kanhai Ram Thekedar (supra) the Hon"ble Supreme Court was dealing with the need for issuing separate demand for recovery of interest. In BHEL Vs. CC & CE, Kanp....
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....and refund of duty already collected under certain circumstances. 13. The answer to the question posed before us would depend on whether sub-section (3) of Section 18 of the Act in the present from creates a new liability. In other words, the said provision can be stated to be stated to be a substantive provision creating fresh liability and not a mere procedural provision. 14. It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. 15. In other words, it is a well established principle of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective operation (refer to the decision or Apex Court in case of Keshavan Medhava Menon Vs. State of Bombay- AIR 1951 SC 128). 16. Particularly, in fiscal legislation imposing liabilities generally governed by the normal rule is that it is not retrospective in nature. It is, however, equal....