2023 (9) TMI 1146 - AT - Customs

Provisional assessment - clean energy Cess payable - non-inclusion of the ship demurrage charges in the value - HELD THAT - It is true that the provisional assessment was sought only for the purpose of ship demurrage charges. However it is now an well-established legal principle that a assessment which is provisional is provisional for all purposes and at the time of finalization of the assessment all factors which are necessary for finalization of the assessment must be reckoned. For instance if the assessment is left open for questions of valuation and subsequently it is found that the classification also requires a change or some other licencing requirement has to be examined all these factors must be examined while finalizing the provisional assessment. There cannot be a provisional assessment which is provisional for one purpose and not provisional for other purposes. Imposition of Clean Energy Cess - Assessment challenging to own self-assessment before the first appellate authority - HELD THAT - It is now settled by the Larger Bench of the Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT that all assessments can be challenged before the first appellate authority including self-assessments. The first appellate authority has correctly allowed the appeals of the importer and has ordered reassessment of the six Bills of Entry after excluding Clean Energy Cess on the ground that there is no charge of Clean Energy Cess on goods falling under Customs Tariff Heading 2704. The clean energy cess is not leviable on goods falling under Customs Tariff Heading 2704. There are no merits in the appeal of the Revenue - appeal dismissed.

Summary

Issues involved:
The judgment involves the issue of provisional assessment on imported goods and the imposition of Clean Energy Cess on coal falling under Customs Tariff Heading 2704.

Provisional Assessment Issue:
The importer had sought provisional assessment due to ship demurrage charges not being included in the value of the imported Low Ash Metallurgical Coke falling under Customs Tariff Heading 2704. The Assistant Commissioner finalized the assessment after the importer submitted the required information. The importer appealed to the first appellate authority, contesting the imposition of Clean Energy Cess on coal under Heading 2704, which they imported, arguing that the levy was not extended to this category. The first appellate authority set aside the finalization of six bills of entry and directed their assessment under 2704 0090 without the levy of Clean Energy Cess, providing consequential relief.

Imposition of Clean Energy Cess Issue:
The Revenue challenged the first appellate authority's order, arguing that the importer had added Clean Energy Cess during import declaration and did not dispute it at that stage. The Revenue contended that since the provisional assessment was for ship demurrage charges and was finalized after considering these charges, the importer should not be allowed to challenge the finalized Bills of Entry on new grounds. However, the Tribunal held that provisional assessment must consider all factors necessary for finalization, and the importer can challenge all aspects of the assessment before the first appellate authority, including self-assessments. Citing a Supreme Court judgment, the Tribunal upheld the first appellate authority's decision to reassess the Bills of Entry without Clean Energy Cess under Heading 2704, stating that Clean Energy Cess is not applicable to goods falling under this category.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming the first appellate authority's decision to exclude Clean Energy Cess from the reassessment of the importer's Bills of Entry under Customs Tariff Heading 2704. The judgment emphasized that all assessments, including self-assessments, can be challenged before the first appellate authority. Consequently, the appeal filed by the Revenue was dismissed, and the Miscellaneous Application for stay was also disposed of.