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TMI Blog2011 (8) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case which shows that the interest clause under Section 47 was inserted as sub-section (2) in the year of 1991 (w.e.f. 23-12-1991) whereas the interest clause under Section 18 was inserted as sub-section (3) in the year of 2006 (w.e.f. 13-7-2006) and the Adjudicating Authority sought to levy interest under Section 47(2) of the Act on differential duty payable on final assessment of Bills of Entry, the CESTAT was right in holding that since the interest liability clause was introduced in 2006 only, the appellants are entitled to that benefit? (b) Whether the CESTAT had made apparent mistake in considering that the interest to be levied by the Appellant would be under Section 47(2) of the Act as introduced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The importer shall make the payment of the differential duty as finally assessed under Section 18(2) of the Customs Act, 1962." 3. The respondents carried the issue in appeal before the Commissioner of Customs (Appeals), Jamnagar. The Commissioner, by order dated 27-7-2005, dismissed the appeal. 4. The respondents went further in appeal before the Tribunal. The Tribunal passed its first order on 29-5-2009. With respect to duty demand, the Tribunal gave no respite to the respondents following decision of the Apex Court in case of M/s. Priya Blue Industries reported in 2004 (172) E.L.T. 145. However, in respect to interest on differential duty, arising as a result of finalization of provisional assessment, Tribunal was of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents. 8. Having heard learned counsel for the department and having perused the documents on record, short question that calls for consideration is whether under Section 47(2) of the Act, the department was entitled to charge interest in facts of the present cases. 9. Facts are not seriously in dispute. For ships, imported during the period from 1992 to 1996, the department permitted clearance thereof upon provisional assessment. Such provisional assessments were made at the relevant time and the duty demanded provisionally was also paid by the importers. Final assessment, however, took considerable time. Such final assessment was made by the Assistant Commissioner in the year 2005. The finally assessed duties were also paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 18 was not in the statute book in the present form. 12. Under the circumstances, department seeks to fall back on the provisions contained in Section 47 of the Act which reads as under : "Section 47. - Clearance of goods for home consumption. - 1. Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. 2. Where the importer fails to pay the import duty under sub-section (1) [within [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below 10% and not exceeding 36% per annum, as may be fixed by the Central Government, by notification in Official Gazette, on such duty till the date of payment of the same. 14. Sub-section (2) of Section 2 of the Act as it stood at the relevant time defined the term assessment to include provisional assessment, reassessment and any order of assessment in which the duty assessed is nil. 15. Upon reading of sub-section (1) of Section 47 in light of the definition of assessment contained in Section 2(2) of the Customs Act makes it abundantly clear that under sub-section (1) of Section 47, the proper officer is empowered to permit cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear the goods and thereafter upon final assessment he is found liable to pay additional duty. In such a case interest could be changed on the differential duty under Section 18(3) of the Act. This is the only way in which we can reconcile the provisions contained in Section 47 with those contained in sub-section (3) of Section 18 w.e.f. 13-7-2006. If we accept interpretation of the department that sub-section (2) of Section 47 permits charging of interest on difference in duty between finally assessed and provisionally assessed customs duty, to our mind sub-section (3) of Section 18 would be superfluous and redundant. It is precisely to cover the situation where an importer is held liable to pay higher duty upon final assessment as compar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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