TaxTMI 
TaxTMI 
2004 (4) TMI 164
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.... users). For traders the duty was fixed at 20% basic. On 3-8-2000, by two identically worded notices, demands for duty and interest were issued. The notices gave the reasons for the demands of duty as follows : "Whereas above prior Entry B.E (Advance Noting) was assessed provisionally, pending test report and finalisation of IGM on 30-12-1999 at the rate of 15% extending notification benefit of 20/99 Srl. No. 11 (Effective as on 29-12-1999) Notification No. 22/99 (For SAD). The entry inward was granted and import general manifest finalised on 4-1-2000. Meantime new Notification Nos. 139 and 140, dated 30-12-1999 were issued wherein the concessional rate was made available only to the manufacturers. The effective rate of duty for trader importer as on 4-1-2000 was @ 35%-10%. Therefore, the duty difference works out to be Rs. 56,36,040/- (Fifty six lakhs thirty six thousand and forty only) which has been short levied at the time of provisional assessment of above Bill of Entry. Therefore as provided under Section 18(2)(a) of Customs Act, 1962, you are directed to pay the differential duty Rs. 56,36,040/- (Fifty six lakhs thirty six thousand and forty only) with interest as appl....
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....Seventy Six Thousand One Hundred Seventy Eight Only) the difference between the duty finally assessed under Sub-Section 2 of Section 18 of the Custom Act 1962 read with the Customs Provisional Duty Assessment Regulation 1963, by the Commissioner of Custom _______ and the duty provisionally assessed by the Commissioner in respect of the said goods under Sub-Section 1 of Section 18 of the Customs Act 1962;' The Importer has quoted the case of Bachittar v. State of Punjab AIR 1963 SC 395 and the State of Punjab v. Amar Singh Harika (AIR 1966 SC 1313). Both the judgments are inapplicable here since the issue involved and the facts of the case are different. The Importer was aware about the existence of bond and their representative at custom house M/s. Narendra Forwarders Pvt. Ltd (Custom House Agent) 11/544 paid duty which was provisional in nature. The remarks of the Appraising officer clearly bring out this fact "Cashier, Please recover provisional duty amount Rs.__________". The Original and Duplicate copy of B/E have been duly endorsed as "Assessed Provisionally" by the Appraising officer. The mere triviality that triplicate copy of B/E could not be endorsed by way of omi....
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....ch that unless it fulfils the condition as mentioned in clause 1 and 2 it remains in full force and virtue. The conditions 1 and 2 of the bond read as - (1) If the importer pays to the President difference between duty finally assessed and the duty provisionally assessment in respect of goods mentioned in the schedule, and (2) If the importer pays to the President any penalty and fine that may be adjusted in lieu of confiscation of the said goods for importation of the goods as part thereof without a valid O.G.L./ import licence. Then the above written bond shall be void and of no effect otherwise the same shall remain in full force and virtue. It needs to be mentioned here the bond has been executed preparing in mind the Section 18 of the Custom Act and hence appellant's contention regarding Section 17 is not tenable. The importer was aware about the existence of the bond and their representative at the Custom House M/s. Narendra Forwardeds Pvt. Ltd. (Custom House Agent) 11/544 paid duty which was provisional in nature. The remark of Appraising Officer clearly brings out the....
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....on 18 of Customs Act, 1962 clearly provide for issuance of such demand notice/grant of refund at the time of finalization of assessment. A demand under Section 18 of the Customs Act, 1962. The Appellant contends that once the test report has been received from the DYCC office (received on 1-7-2000) or the PHO office (received on 11-1-2000), it is to be held that the test bond is automatically cancelled. It is submitted that there is no such provision in law. It is well settled that once an assessments provisional, it is provisional for all purposes and not necessarily provisional in respect of the particular ground considered at the time of provisional assessment. Following case laws in support of this settled position are relied upon. (i) CC. v. India Tyre and Rubber Co. Ltd. - 1997 (94) E.L.T. 495 (Mad.) (ii) Wipro Ltd. v. Commissioner - 1998 (100) E.L.T. 522 (Trib.) (iii) Salica Electronic Ltd. v. Commissioner - 1998 (98) E.L.T. 561 (Trib.) (iv) Swastik Fragrance v. Commissioner - 2000 (121) E.L.T. 375 (T....
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....reported at 1981 (8) E.L.T. 922 held that Section 2 of the Customs Act, 1962 provides for period of limitation for recovery of duty not levied, short-levied or erroneously refunded but not for duty found payable at the time of final assessment. [para 9] Hon'ble High Court of Delhi in the case of International Computers Indian Manufacturers Ltd. reported at 1981 (8) E.L.T. 632 held that Section 28 of Customs Act, 1962 will not apply to provisional assessments but only to cases of completed assessments in which duty was not levied or was short-levied or refund was found due and payable. [para 9] It was further held that, if there was no provisional assessment and the provisions of proviso to Section 28(1) of the Customs Act, 1962 were not attracted, the demand of duty raised after more than six months of the completion of assessment was time barred. [para 14] In the case of Otoklin Plants and Equipments Ltd. reported at 2002 (150) E.L.T. 123, Hon'ble Tribunal held that assessments made on provisional basis and are sought to be finalized under Section 18 of Customs Act, 1962 and not under Section 28 of the Act." (ii) The perusal of the notices indicate that they do not spe....
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.... in order will be put up to Assistant Collector for acceptance. After acceptance by the Assistant Collector, the Appraiser will forward the bond with the Bills of Entry as usual to the Group Bond Clerk for registration both in the Bond Register as well as in the provisional duty Register. After this registration is done and the serial No. both in the Bond Register and the P.D. Register is endorsed boldly on each copy of the Bill of Entry, the bond will be detached by the Bond clerk and kept in safe custody and the Bill of Entry sent to Scrutinising Appraiser who will then obtain the representative samples drawn by the shed staff in the presence of the importer's representative for the purposes of test, and will also enface each copy of the Bills of Entry with the rubber stamp 'Provisional Duty'. He will endorse the appraisement order on the original B/E and ask the Shed Staff to draw representative samples and to send them direct to the Dy. Chief Chemist (DCC) or Incharge Laboratory, Custom House for chemical test in accordance with the usual procedure. In such cases the Scrutinising Appraiser, if necessary, will specify the number of packages to be opened for drawal of required sa....
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....ore the Assistant Commissioner, every month. The same is claimed to be misplaced and not produced. That is hard to believe. No Registration Number of the provisional assessments required to be entered in this register, as prescribed, are mentioned on all or any of the copies of the two BEs, which would have been shown, in the normal course, if Provisional Assessment procedure, as prescribed was followed. (See portion emphasised in para (b) above). The absence of these numbers, therefore, prove that provisional assessments have not been recorded and/or ordered. (d) Examining the File No. S/5-Test-514/99 Gr-I (S/49-26/2003), it is seen, the first noting in the file is a typewritten note, with the words and figures BE No. and IGM hand written and words 'prior Entry' interpolated in hand between words typed 'above' and 'BE' in the first sentence. The typed word 'completed' is scored out with black ink and the words 'assessed prov' is written in hand and the words 'subject to test report/finalisation of I.G.M.' added in hand in the last sentence. All these handwritten, interpolations, additions, deletions are in black colour ink. While the Appraising Group I (abbreviated as A.O.G.I i....
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....ssment Therefore, provisional assessment was effected in this case is not established. The reliance of the appellants on the decision of AIR 1963 SC 935 and AIR 1966 SC 1313 holding that unless an order is communicated, there is no valid order is well founded, and applicable in the facts of this case. A valid order of 'provisional assessment' was required to be issued and called for as held in the case of Metal Forgings v. Union of India - 2002 (146) E.L.T. 241 (S.C.) and clearances effected pursuant to such an order can only be a clearance on provisional assessment. No doubt, the case of Metal Forgings (supra) was a case under the Central Excise Act, yet the law as laid down by the Apex Court on provisional assessment in that case would be applicable to provisional assessment being resorted under Section 18(1) of the Customs Act, 1962, which provides that "a proper officer may direct that duty leviable on such goods pending production xxxx, be assessed provisional……..". This statutory direction has to be an 'order' and cannot be assumed. CBEC's Customs Manual and Instructions issued on 11-9-2001 for information of general public in Chapter 7 on provisional assessment at para 3....