TMI Blog2011 (8) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisional assessment prior to the enactment of the Taxation Laws (Amendment) Act, 2006 (29 of 2006) i.e. 13.07.2006? (B) Whether in the facts and circumstances of the case, the Hon'ble CESTAT was correct in law in merely relying on the decision of CESTAT, SZB, Chennai in the case of M/s. Sterlite Industries (India) Ltd. [2008 (223) ELT (Tri-Chennai)] and Order No. A/971-1059/WZB/AHD/2009, dated 22.04.2009/29.05.2009 of CESTAT, WZB, Ahmedabad in the case of M/s. Kamdar Associates and others, ignoring the fact that MCA No. 454 of 2007 has already been filed with Madras High Court against the order of CESTAT, SZB, Chennai in the case of M/s. Sterlite Industries (India) Ltd. and ROM-application has been filed before CESTAT, WZB, Ahmedabad against the order of CESTAT, WZB, Ahmedabad in case of M/s. Kamdar Associates and others?" 2. Brief facts are follows: 2.1 The respondent is engaged in the business of ship breaking. Respondent imported ship for breaking and filed the bill of entries for clearance of vessel on or around 24.01.2005 with the customs authorities. There was a dispute between the department and the respondent with respect to fuel and oil contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rose as a result of provisional assessment. 3. In view of the Tribunal's decisions cited by the learned advocate, I find that the issue is covered by the precedent decisions of the Tribunal and accordingly reject the appeal. The cross objection filed by the respondent also gets disposed of." 3. Before us, learned counsel for the department vehemently contended that the Tribunal committed error in deleting the interest. She submitted that atleast for the period subsequent to 18.07.2006 when sub-section (3) of Section 18 of the Customs Act permitted charging of interest, the levy of interest ought to have been upheld. 4. Our attention was drawn to the decision of the Apex Court in case of Pratibha Processors vs. Union of India reported in 1996 (88) E.L.T. Page 12 as well as in case of Haji Lal Mohd. Biri Works Allahabad through Abdul Hamid vs. The State of U.P and ors reported in 1973 (32) STC 496. 5. Though the notice was served, no one appeared for the respondent. 6. Having thus heard learned counsel for the department and having perused the documents on record, the short controversy that calls for consideration in this tax appeal is whether in facts of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisional assessments and, therefore, it was open to the department to levy interest on the differential amounts of duty paid by the assessee upon finalization of such assessments. This case of the Revenue is not acceptable inasmuch as the charging provision for interest on any differential amount of duty paid on finalization of provisional assessment is Section 18(3) of the Act. This is a substantive provision of law, which, in the absence of express mention of retrospective effect, cannot be given retrospective operation so as to cover the provisional assessment made prior to 13.07.2006. In this context, it will be Apposite to refer to the Hon'ble Supreme Court's judgement in India Carbon Ltd. V. State of Assam- [1997] 106 S.T.C. 460 (S.C), wherein it was held that interest could be levied and charged on delayed payment of tax only if the statute that levied and charged the tax made a substantive provision in this behalf. The substantive provision of law relevant to the present case, we repeat, is Section 18(3) of the Customs Act and not Section 28AB of the Act. Where any interest on duty is leviable from an assessee under Section 18(3) of the Act, it shall be recovered at the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y assessed duty. Alongwith other provisions contained in Section 18, Sub-section (3) was therefore introduced to enable the department to levy such interest. We may also notice that simultaneously other changes were also made in Section 18 relating to the question of unjust enrichment and refund of duty already collected under certain circumstances. 13. The answer to the question posed before us would depend on whether sub-section (3) of Section 18 of the Act in the present form creates a new liability. In other words, the said provision can be stated to be a substantive provision creating fresh liability and not a mere procedural provision. 14. It is, by now, well settled that the statutory amendments, either creating fresh liability hitherto no existing or extinguishing accrued rights would be considered prospective unless statute either specifically or by necessary implication gives such provision retrospective effect. 15. In other words, it is a well established principles of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. In the present case, we find that prior to introduction of sub-section (3) of Section 18 of the Act in the present form, there was no liability to pay interest on difference between finally assessed duty and provisionally assessed duty upon payment of which the assessee may have cleared the goods. It was only with effect from 13.07.2006 that such charging provision was introduced in the statute. Upon introduction therefor such provision created interest liability for the first time w.e.f. 13.07.2006. In absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such a statutory provision, we are of the opinion that the same cannot be applied to cases of provisional assessment which took place prior to the said date. Any such application would in our view amount to retrospective operation of the law. 18. In case of Commissioner of Customs vs. Hindalco Industries Ltd. reported in 2008 (231) E.L.T. Page 36, Division Bench of this Court was called upon to interpret some of the other provisions of Section 18 which were also introduced by virtue of the same amendment i.e. Taxation Laws (Amendment) Act No. 29 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upto 12.07.2006) does not provide for various issues arising from the finalization of provisional assessment. Thus it becomes apparent that the amendment in question is substantive in nature when one find that various provisions have been inserted which were not forming part of the original Section 18 of the Act as it stood upto 12.07.2006. It is not possible to stale that the provisions for payment of interest on duty short levied or entitlement to interest on duty paid in excess of the finally assessed duty can be considered to be clarificatory provisions and in the same vein the newly inserted sub-section (5) deserves consideration. Thus in effect upto 12.07.2006 no provision existed in Section 18 of the Act which would permit revenue to invoke principles of unjust enrichment in relation to duty paid in excess, found to be so, upon finalization of provisional assessment under Section 18 of the Act. 19. The decision of the Apex Court in case of Pratibha Industries laid down that interest in Section 16(2) of the Customs has no independent or separate existence and if the principal is not recovered or payable so also interest on it. We do not find the said decision has any appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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