2020 (2) TMI 612 - AT - Customs

Import of Ordinary Portland Cement Clinker in Bulk under CTH 2523.10.00 form Indonesia claiming concessional rate of duty i.e. BCD @ 5% as per the said Notification - benefit denied on account of certain discrepancies in the certificate of origin - importer prayed for provisional assessment of the goods and got the goods cleared - Benefit of N/N. 46/2011-CUS dated 01.06.2011 - HELD THAT - As per Sl.No.195 of the notification No.46/2011-CUS dated 01.06.2011 the concessional rate of duty is extended to the goods imported from Indonesia under CTH 252310 to 252321. The respondent has imported the goods from Indonesia which is evident from the Bill of Lading and Certificate of Origin issued under ASEAN-INDIA Free Trade Area (AIFTA) between Indonesia and Republic of India vide No.0000270/PDG/2018 dated 29.01.2018. We also find that the said Certificate was duly verified by the proper officer of Appraising General Unit dated 09.03.2018 13.04.2018. Also the Invoice No.PWD052-2k18/SII-A dated 23.01.2018 Country of Origin (i.e. Indonesia) as mentioned in the said certificate is also mentioned in the Bill of Entry as declared by the respondent - The First Appellate authority has in the impugned order recorded cogent reasons for allowing the benefit of the notification. Even if the respondents had initially not claimed the benefit of notification nothing prevents them for claiming it by filing an appeal against the assessment. Any assessment including self-assessment can be appealed against. It is now a well established legal principle that an assessment which is provisional is provisional for all purposes. There is no provision in law to treat the same assessment as provisional for one purpose and final for another. Even if the respondent had not protested against denial of the benefit of the notification during finalization of the assessment it does not stop them from claiming the benefit subsequently by filing an appeal against the assessment. The Appellate Authority was correct in examining such a claim and giving the benefit of Notification since he found them eligible for the same. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Benefit of Notification No.46/2011-CUS dated 01.06.2011 denied due to discrepancies in Certificate of Origin.
2. Finalization of Bill of Entry without granting benefit of notification despite rectified Certificate of Origin.
3. Appeal filed before Commissioner of Customs(Appeals) challenging the lower authority's decision.
4. Allegation of violation of natural justice principles in the lower authority's order.
5. Provisional assessment of Bill of Entry and subsequent denial of notification benefit.

Analysis:
1. The appellant imported "Ordinary Portland Cement Clinker in Bulk" under CTH 2523.10.00 and claimed the benefit of Notification No.46/2011-CUS dated 01.06.2011. Due to discrepancies in the Certificate of Origin, the benefit was denied, and Bill of Entry was assessed at a higher rate of duty.

2. Despite receiving a rectified Certificate of Origin, the Bill of Entry was finalized without granting the notification benefit, based on an alleged withdrawal letter by the importer. The importer sought refund and retention of the benefit, but the lower authority rejected the request.

3. The importer appealed before the Commissioner of Customs(Appeals), arguing that they were entitled to the concessional rate of duty as per the notification and that the lower authority's order lacked procedural fairness. The Commissioner allowed the appeal, leading to the department filing an appeal before the Tribunal, with the respondent also filing a Cross Objection.

4. The Tribunal observed that the importer had submitted the corrected Certificate of Origin, duly verified by the authorities, and that the goods were imported from Indonesia as per the relevant documents. The Tribunal noted that the lower authority's denial of the notification benefit was based on the defects in the certificate and an alleged withdrawal letter, which the importer could challenge through an appeal.

5. Regarding the provisional assessment and subsequent denial of the notification benefit, the Tribunal held that the assessment should be considered provisional for all purposes until finalized. The importer's failure to contest the denial during finalization did not prevent them from claiming the benefit later through an appeal, as established by legal principles.

In conclusion, the Tribunal upheld the Commissioner's decision, finding the importer eligible for the notification benefit and rejecting the department's appeal. The Cross Objection was also disposed of accordingly.