TMI Blog2018 (10) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent, since an order of adjudication is yet to be passed. No doubt, there is some delay on the part of the respondents in completing the provisional assessment, at the same time, when the alleged duty evasion is to the tune of ₹ 9.54 crores and that too, based on the DRI report, this Court is of the view that it is for the petitioner to make their reply to the said letter and explain all their stand in detail so that the second respondent will be in a position to finally make the provisional assessment without loss of any further delay. This Court is not expressing any view on the merits of the contentions raised by both parties with regard to the liability of the petitioner to pay the differential duty as alleged by the respondents, as this Court has only remitted the matter back to the second respondent to consider the same, based on the reply submitted by the petitioner - petition dismissed. - W.P.Nos. 6492, 6493 & 14365 of 2018 in W.M.P.Nos.8439 & 16794 of 2018 - - - Dated:- 8-10-2018 - Hon'ble Mr. Justice K. Ravichandrabaabu For the Petitioner in all the W.Ps : Mr.Hari Radhakrishnan For the Respondents in W.P.Nos. 6492 6493 of 2018 : Mr. M.Santhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner imported all the goods required to set up the power plant under the project import scheme and after import, the goods were installed at the power plant site. After making the plant operational, the petitioner requested the second respondent to finalise the assessments of all the imports made by them through letter dated 17.06.2003, 10.07.2003, 09.02.2004. The petitioner also submitted a detailed letter dated 29.11.2003 clarifying some of the queries raised orally by the Assessing Officer. Further reminder was sent on 17.03.2004 and 27.03.2004. The petitioner met the second respondent in person on 13.05.2004. During the course of the meeting, the second respondent informing the petitioner that they needed proof regarding the installation of the imported goods. The petitioner enquired the date on which the chartered engineer was to visit the site of the power plant of the petitioner. Thereafter, there is no response from the second respondent. (ii) The counsel for the petitioner Company made a detailed submission dated 28.05.2004. The second respondent fixed the personal hearing on any day from 14.06.2004 to 18.06.2004 during office hours. The representative of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal trade practice, whereas the procurement price of M/s. Marubeni Corporation, Japan, from M/s.Stone Webstar Engineering Corporation, USA, is higher than M/s. Marubeni's invoice price to the petitioner, which is not a normal trade practice. The evidence for the higher procurement price during investigation is the chart recovered and seized from the computer available in the office premises of M/s. Marubeni Corporation, Chennai, along with CPU. The executives of the petitioner as well as M/s. Marubeni Corporation have admitted the value difference between the procurement prices of M/s. Marubeni from M/s. Stone and Webstar and the prices declared in M/s. Marubeni's invoices to M/s. PPN, viz., the petitioner herein. The Managing Director of the petitioner was enquired under section 108 of the Customs Act and during the course of such enquiry, he interalia stated that he took full responsibility about the customs duty and if the invoice value is less than the actual value, the petitioner will be benefited. When specifically enquired as to who will be liable to pay the differential duty arising out of the discrepancy, the Managing Director stated that the petitioner will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not completed within a period of six months, the authority will not insist upon the renewal of bank guarantee in view of the said circular. He also relied upon 2007(217) E.L.T. 325 (SC) (State of Punjab vs. Bhatinda District Co.op. Milk P.Union Ltd.), 1989 (42) E.L.T. 515 (SC) (Government of India vs. Citedal Fine Pharmaceuticals) to contend that even though there is no time limit for making the provisional assessment, the same has to be done within a reasonable time. Therefore, he contended that the prolonged period taken by the respondents in completing the provisional assessment, had made the petitioner to suffer all along, that too, when their bank guarantees are being renewed continuously from the date of its issuance. Thus, the learned counsel submitted that even though the respondents are entitled to make the provisional assessment, they are not entitled to retain the bank guarantees or insist upon the petitioner to renew the same further. Thus, he sought for return of the bank guarantees as well as the cash deposit made by the petitioner. 6. Per contra, learned counsel appearing for the respondents submitted as follows: (a) Insofar as W.P.Nos.6492 and 649 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no dispute to the fact that the whole case revolves around the import of the goods by the petitioner under the Project Import Regulations, 1986. It is stated that after importing those goods, erecting the same in the plant site and after commencing the project and completing the same, the petitioner has approached the respondents and filed all the necessary documents for release of the bank guarantees, cash deposit etc. The petitioner claims that as per the said Project Import Regulations,1986, imported goods were cleared under CTH 9801. However, there is no dispute to the fact that DRI has conducted an investigation and filed a report alleging that the petitioner has undervalued the goods which has resulted in loss of differential duty to the tune of ₹ 9.54 crores. The said report is taken as basis for issuing the present impugned communication dated 22.05.2018. 11. Admittedly, the provisional assessment in respect of the goods imported has not taken place so far. There is no dispute to the fact that there is no time limit for making such provisional assessment. No doubt, the report of the DRI dated 04.10.2007 is now taken by the respondents for issuing the impugned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .05.2011, once the petitioner has filed the necessary documents, the respondents are not entitled to retain the bank guarantees beyond the period of six months. Therefore, he contended that the bank guarantees are directed to be returned to the petitioner. In support of his contention, he relied on 2015(321) ELT 616 (West Coast Papers Mill Ltd. vs. Deputy Commissioner of Customs) . 13. It is true that Circular No.22/2011-Cus stipulates that the authorities should not insist upon the renewal of bank guarantee if the assessment is not completed within a period of six months. But a careful perusal of the said circular would show that it has not taken into consideration of the situation like the one on hand namely, investigation conducted by DRI and the adverse report filed by them against the petitioner regarding under valuation. Under such circumstances, I do not think that this Court, at this stage, is to consider the effect of the said Circular on the present case and give its finding in any manner. Consequently, the above decision relied on by the petitioner cannot be applied to the facts and circumstances of the present case. The other decisions viz., 2007(217) E.L.T. 325 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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