TMI Blog2007 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of Entry on which provisional assessment was made under Project Imports Regulations 1986. The declared value was DM 46.75 million on which the importer paid Rs. 7.93 crores as duty. This was not accepted by the Department. They issued a show cause notice dated 24-10-1988. They made provisional assessment based on total transaction value of DM 84.15 million. Thus, the Department increased the transaction value from DM 46.75 million to DM 84.15 million, i.e., addition of DM 37.40 million. This increase was made by the Department by loading the assessable value on account of certain technical fees/charges. Under the provisional assessment, the Department accordingly called upon the importer to pay Rs. 13.95 crores. As stated above, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund shall be made within two weeks from the date of the furnishment of the bank guarantee or within a period of 6 weeks whichever is later. If the appellants succeed in appeals, the amount of refund obtained pursuant to order shall be made good and restituted back to the appellants by the respondent together with interest thereon @ 18% per annum from the date of the refund." 5.Finally, by judgment and order dated 19-11-1996, this Court disposed of the Department's Civil Appeal Nos. 3152-53/91. It was held that fees paid by the importer to the foreign' supplier for theoretical and practical training of engineers outside India was not includible in the assessable value of the plant. It was further held that engineering and consultancy fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the refunded amount to the Department with 18% interest. The entire controversy revolves round this interim order. 8.In our opinion, this litigation was totally unwarranted and time consuming. On one hand, the importer contended that under the Customs Act, 1962, as it stood at the relevant time, there was no provision for levy of interest on provisional assessment. According to the importer, the Department could have levied interest only on final assessment. According to the importer, the present case related to imports during the period September to November, 1988. According to the importer at that time there was no provision for levying of interest on provisional assessment. According to the importer, Section 47(2) was not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t attracted. That, the doctrine of merger of the interim order in the final order was not applicable in the present case. 9.According to the Department, on the other hand, the Tribunal had passed an order of refund of Rs. 6.02 crores. According to the Tribunal, the assessable value was not liable to be loaded on account of technical fees/charges. The Department had filed Civil Appeal Nos. 3152-53/91 against the decision of the Tribunal granting the refund. At the stage of preliminary hearing when the Department sought an order of stay of the refund, the importer was allowed the refund of Rs. 6.02 crores subject to the importer giving a bank guarantee to the satisfaction of the Collector. It was made clear in the interim order that Rs. 6.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in getting the assessable value reduced. The duty amount of Rs. 6.02 crores was based on the loading of certain items to the tune of DM 37.40 million which this Court did not accept. Duty is derived from the assessable value. As can be seen from the order of final assessment, the differential duty stood substantially reduced from Rs. 13.95 crores to Rs. 10.63 crores (approx.). The final assessment order has given a complete break-up of the amounts paid during the interregnum by the importer. When the litigation was going on the Department has recovered Rs. 6.02 crores on 10-7-1997; it has recovered Rs. 2.17 crores on 1-11-2000; the importer has paid Rs. 50 lacs on 6-1-2001 and the importer has paid Rs. 75 lacs on 10-2-2001. In all, an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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