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2022 (2) TMI 680 - AT - CustomsRejection of refund claim - finalization of provisional assessment or not - refund claim was rejected on the ground that the PD bonds executed had been finalized/cancelled - HELD THAT:- It is clear that the exporter shall pay any fine or penalty, which is imposed in adjudication proceedings, if the Fe content is more than 63.99%. There is no dispute as regards the Fe content in the export consignment, from the report of the Chemical Examiner CRCL, Cochin, which showed Fe content to be less than 63.99% and which has been accepted by both the appellant as well as the Revenue. The liability to pay fine or penalty arises only when the Fe content is more than 63.99% but when it is proved that the Fe content was much below the threshold, naturally the PD bond will have no effect and the same stood cancelled. This is just the starting point, the same requires the finalization of the provisional assessments since the actual duty liability is involved and hence adjudication has to take place to determine the same. The requirement of law is that a provisional assessment, if treated as such, shall be treated as provisional for all practical purposes. The statute mandates the passing of the final assessment since a provisional assessment will have to be taken to its logical conclusion, by passing a final assessment order after obtaining necessary information or any report or any other document that the Officer may require, as prescribed under Section 18(1) ibid.It is also for the reason that a provisional assessment is in the nature of an interim order, which is not enforceable. Otherwise, granting of time as in Section 18(4) becomes otiose. Other than this, law does not recognize any deeming fiction to treat a provisional assessment as the final one. Hence, a provisional assessment will always remain as a provisional one. There is no shortcut as a deemed finalization since the authorities can only collect the tax/duty as permissible under law. Hence, the non-finalization of the provisional assessment has lead to a situation where the duty paid by the unsuspecting assessee has been retained in full without following the process of law since it is observed that a provisional assessment will not automatically become final but the same has to be taken to its logical conclusion by passing a final order. Appeals are allowed by way of remand to the adjudicating authority with a direction to pass a speaking order finalizing the assessment.
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