TMI Blog2012 (5) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... A would have no application as no duty has been determined u/s 28(2). Further, no notice u/s 28(1) to recover any short levy or non levy of duty was issued. Consequently no cause to recover any duty under sub section (2) of Section 28 would arise. Therefore Section 28AA of the said Act would have no application to present facts. Tribunal has only held that interest is not recoverable under the provisions of the said Act and has not allowed appeal of assessee on the ground that no show cause notice for demand of interest was issued - Appeal dismissed - Customs Appeal (L) No.61 of 2010 - - - Dated:- 9-5-2012 - J P Devadhar and Sanklecha, JJ. For Appellants: Mr A M Sethana Kirankumar Phakade For Respondents: Mr Avinash Rana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above order under Section 25(2) of the said Act, Respondent No.1 filed a Writ Petition bearing No.2460 of 1979 in this Court seeking that the relief granted to State Chemicals and Pharmaceuticals Corporation of India Ltd. be extended to them. This court, by an interim Order dated 10/1/1980 allowed the Respondent to clear the imported Caustic Soda on deposit of 10% of customs duty in cash and furnishing bank guarantee for the balance 82.5%. Consequent to the above order, the Respondent No.1 cleared its imported caustic soda under the orders of this Court pending disposal of its petition. In the mean time, Respondent No.1 also filed a Writ Petition in Delhi High Court for identical relief. However, the Delhi High Court dismissed the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/1996, the Apex Court reviewed its earlier order dated 9/9/1991 and held that Respondent No.1 was liable to pay duty at 92.5% and the benefit of reduced duty granted to the State Chemicals and Pharmaceuticals Corporation of India Ltd. under Section 25(2) of the said Act could not be extended to the Appellant. Consequent thereto, Respondent No.1 has discharged its full liability of Customs duty. However, the department is seeking to recover interest under Section 28AA of the said Act from Respondent No.1 on account of delayed payment of duty. (f) On 30/10/2006, the Dy. Commissioner of Customs called upon Respondent No.1 to pay interest for the delayed payment of duty. (g) Being aggrieved, the Appellant preferred an appeal to the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before the Tribunal the Appellant filed a statement clearly stating that the assessments were finalized in 1991 and the bonds were cancelled and the bank guarantee were returned to Respondent No.1 at that time. On the aforesaid admission the Tribunal concluded that finalisation of provisional assessments are governed by Section 18 of the said Act. Further Section 28AA of the said Act would have no application as no duty has been determined under Section 28(2) of the said Act. In the present case, no notice under Section 28(1) of the said Act to recover any short levy or non levy of duty was issued to Respondent No.1. Consequently no cause to recover any duty under sub section (2) of Section 28 would arise. Therefore Section 28AA of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only with effect from 13/7/2006 that sub section (3) was introduced providing that interest will be payable consequent to the final assessment, from the first day of the month in which the duty was provisionally assessed till the date of payment thereof. The aforesaid provision was advisedly not invoked by the Appellant either before the Tribunal or before us as the same would have no application for the period prior to 13/7/2006. The Supreme Court in the matter of India Carbon ltd. reported in 1997(106) Sales Tax Cases Pg. 460 has clearly held that provision for charging interest is a substantive provision and can be charged only if the statute makes a substantive provision in that regard. In view of the above, we find no error in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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