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TMI Blog2019 (8) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms (Imports), Mumbai, in pursuance of the order in original. The petitioner-Union has paid the differential duty. The challenge merely pertains to the claim of the Commissioner of Customs for recovery of interest. 2. The chief contention of the petitioner-Union is that the subject goods were imported by the Railways in 19861987 under the Project Import Regulations, 1986. The goods were assessed to customs duty provisionally under the Customs Tariff heading 9801 by extending the benefit of concessional duty rates. It is submitted that on the date the goods were imported, there was no provision in law, namely, the Customs Act, 1962, for claiming any interest on delayed payment of duty. It is submitted that the duty was finally assessed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent-customs have accepted that order. 4. Section 28AA of the Customs Act provides that when a person charged with customs duty determined under Sub-Section (2) of Section 28 fails to pay such duty within three months from the date of such determination, he shall pay, in addition to the duty, interest at the stipulated rate on such duty from the date immediately after the expiry of three months till the date of payment of such duty. It is not in dispute that the order in original determining duty payable under Sub-Section (2) of Section 28 was passed by the Deputy Commissioner of Customs on 05th July 2006. It is also not in dispute that the duty determined by the Deputy Commissioner was not paid by the petitioner Union within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he month succeeding the month in which duty ought to have been paid under the Act", in the event of non-levy or nonpayment or short-levy or short-payment of any duty of excise. All duties of excise are leviable and payable at the time of clearance or removal of the goods produced or manufactured. The question of non-levy or nonpayment or short-levy or short-payment would thus arise at the time of such clearance or removal. The relevant date for claiming interest, thus, would be the date of clearance without payment of full duty, occasioning such non or short-levy or payment. The observations of our Court in that case that the provisions of Section 11AB, inserted with effect from 28th September 1996, would apply only to those cases where cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality such as fraud or collusion or willful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder with intent to evade payment of duty. The provision was held by the Supreme Court to be applicable only to those illegalities which were committed by the assessee after the introduction of the provision. If any such illegality was committed prior to the introduction of the provision of penalty in the Act, the penalty provision could not be applied to it. In our case, the assessee's liability to pay interest arises under section 28AA on account of nonpayment of duty determined by the authorities within three months of such determination. The order in original determining such duty in our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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