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TMI Blog2011 (3) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of duty and on execution of bond for the balance duty amount. However, this was declined by the Assistant Commissioner of Customs, against which the Writ Petition was filed for a direction from this Court to the said Officer to make provisional assessment under Section 18 of the Act and for release imported consignments. The learned Single Judge held that provisional assessment is exclusively within the discretion of the Officer who has to assess the duty, and importers cannot as a matter of right seek for provisional assessment of duty and release of goods. It is against this judgment, the appellants have filed this Writ Appeal. 2. We have heard Shri.C.K.Karunakaran, learned counsel appearing for the appellants, and Shri.John Varghese, learned Senior Standing Counsel appearing for the Customs and Excise Department. 3. During hearing, the appellants conceded that for the cargo imported by the appellants, final assessments have been made and the appellants have, infact, filed appeal against such final assessment of duty before the Commissioner (Appeals). However, the appellants case is that even though no direction for provisional assessment is sought in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elease of goods on provisional assessment of duty because the Department is indifferently permitting release of goods on part payment of duty and on execution of bond without adequate security and the bond which is only an undertaking by the party, and when dishonoured the Department will be without any effective remedy to recover the amount. 5. Sections 17 & 18 of the Act provide for assessment of duty finally and provisionally respectively. The Scheme of the Act is such that as far as possible goods in the export or import stream should be released only after final assessment and on payment of duty. What is mandatory under Section 17(1) is that before assessment of duty the goods brought to the Port for export or import will have to be examined and tested by the Officer. This is obviously for the purpose of identifying the goods with reference to the claim as declared by the party and to verify it's quantity, quality etc. The Assessing Officer is required to levy duty under Sub Section (3) of Section 17 of the Act after giving an opportunity to the importer/exporter to produce documents and information relating to the goods and release goods on recovery of duty. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it is imported or for export should be released after final assessment and collection of duty. However, it may so happen that final adjudication of duty may get delayed for various reasons, and Section 18 of the Act takes care of such situation wherein the Officer is given discretion to make provisional assessment of duty and release the goods pending final adjudication. Three situations are specifically provided in clauses (a), (b) & (c) of Section 18(1) of the Act for the Assessing Officer to resort to provisional assessment of duty. The first one covered by clause (a) is a case where the proper officer is satisfied that the importer/exporter is unable to produce any document or furnish any information necessary for assessment of duty on the goods imported or brought for export. What is relevant is not the failure or refusal on the part of the party to produce documents required for making assessment of duty. On the other hand, the Officer should be satisfied that the importer/exporter is unable to produce documents or furnish information required for assessment. It is only on being satisfied about the bonafides of the party's inability, the Officer will proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion covered by sub clause (a) we do not think the importer/exporter can even request for provisional assessment of duty which, in our view, covered by all other clauses is completely within the discretion of the proper officer adjudicating the matter. In other words, the importer/exporter has no role in matters covered by clauses (b) & (c) wherein the Officer only has the discretion to make provisional assessment and release of goods after sending the goods for chemical and other tests and wait for test result for final adjudication or if the officer feels he needs to conduct further enquiry and collect information in his own way for final adjudication, no matter the party has produced all required information and documents which according to the party are required for assessment of duty. 11. We therefore conclude that an importer exporter is entitled to demand provisional assessment under Section 18(1)(a) if such person convinces the proper officer the requirement of further documents or information which are not readily available with the party and are required for assessment, which such importer / exporter will be able to obtain and produce before the Officer within a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be levied later will be recoverable from the party. For this purpose, the provisions of the Act and the Regulations above referred provide for determination of duty based on available documents, evidence and claim made by the party and also estimation of duty which according to the Officer is likely to be levied finally. So much of the duty determined based on the documents and claim of the party is the admitted duty which the party has to straightly remit. The duty provisionally determined is nothing but the duty which the Officer estimates over the duty admitted by the party as payable based on his estimation on the value, classification or the rate applicable, which is essentially a matter to be determined by the Officer. Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer / exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer. After remitting the duty in terms of the claim made by the party (admitted duty) and up to 20% of the provisional duty de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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