TMI Blog2004 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... users). For traders the duty was fixed at 20% basic. On 3-8-2000, by two identically worded notices, demands for duty and interest were issued. The notices gave the reasons for the demands of duty as follows : "Whereas above prior Entry B.E (Advance Noting) was assessed provisionally, pending test report and finalisation of IGM on 30-12-1999 at the rate of 15% extending notification benefit of 20/99 Srl. No. 11 (Effective as on 29-12-1999) Notification No. 22/99 (For SAD). The entry inward was granted and import general manifest finalised on 4-1-2000. Meantime new Notification Nos. 139 and 140, dated 30-12-1999 were issued wherein the concessional rate was made available only to the manufacturers. The effective rate of duty for trader importer as on 4-1-2000 was @ 35%-10%. Therefore, the duty difference works out to be Rs. 56,36,040/- (Fifty six lakhs thirty six thousand and forty only) which has been short levied at the time of provisional assessment of above Bill of Entry. Therefore as provided under Section 18(2)(a) of Customs Act, 1962, you are directed to pay the differential duty Rs. 56,36,040/- (Fifty six lakhs thirty six thousand and forty only) with interest as applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2 of Section 18 of the Custom Act 1962 read with the Customs Provisional Duty Assessment Regulation 1963, by the Commissioner of Custom _______ and the duty provisionally assessed by the Commissioner in respect of the said goods under Sub-Section 1 of Section 18 of the Customs Act 1962;' The Importer has quoted the case of Bachittar v. State of Punjab AIR 1963 SC 395 and the State of Punjab v. Amar Singh Harika (AIR 1966 SC 1313). Both the judgments are inapplicable here since the issue involved and the facts of the case are different. The Importer was aware about the existence of bond and their representative at custom house M/s. Narendra Forwarders Pvt. Ltd (Custom House Agent) 11/544 paid duty which was provisional in nature. The remarks of the Appraising officer clearly bring out this fact "Cashier, Please recover provisional duty amount Rs.__________". The Original and Duplicate copy of B/E have been duly endorsed as "Assessed Provisionally" by the Appraising officer. The mere triviality that triplicate copy of B/E could not be endorsed by way of omission, does not take away the legal force of the Bond. Once an assessment is provisional it is provisional for all pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment in respect of goods mentioned in the schedule, and (2) If the importer pays to the President any penalty and fine that may be adjusted in lieu of confiscation of the said goods for importation of the goods as part thereof without a valid O.G.L./ import licence. Then the above written bond shall be void and of no effect otherwise the same shall remain in full force and virtue. It needs to be mentioned here the bond has been executed preparing in mind the Section 18 of the Custom Act and hence appellant's contention regarding Section 17 is not tenable. The importer was aware about the existence of the bond and their representative at the Custom House M/s. Narendra Forwardeds Pvt. Ltd. (Custom House Agent) 11/544 paid duty which was provisional in nature. The remark of Appraising Officer clearly brings out the fact "Cashier, please recover provisional duty amount R .---------. The original and duplicate copy of B/E have been duly endorsed as 'Assessed Provisionally". The mere triviality that triplicate copy of B/E could not be endorsed by way of omission does not take away the legal force of the bond. Under Section 15 it is stated that if a B/E has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond is automatically cancelled. It is submitted that there is no such provision in law. It is well settled that once an assessments provisional, it is provisional for all purposes and not necessarily provisional in respect of the particular ground considered at the time of provisional assessment. Following case laws in support of this settled position are relied upon. (i) CC. v. India Tyre and Rubber Co. Ltd. - 1997 (94) E.L.T. 495 (Mad.) (ii) Wipro Ltd. v. Commissioner - 1998 (100) E.L.T. 522 (Trib.) (iii) Salica Electronic Ltd. v. Commissioner - 1998 (98) E.L.T. 561 (Trib.) (iv) Swastik Fragrance v. Commissioner - 2000 (121) E.L.T. 375 (Trib.) (v) Diamond Wire Industries v. Commissioner - 2000 (126) E.L.T. 1062 (Trib.) (vi) TISCO Ltd. v. Commissioner - 1999 (114) E.L.T. 461 (Trib.) Appellant's plea that the demand for duty was time barred is also untenable since in case of provisional assessment, limitation period for purpose of demand notice under Section 28 of Customs Act, 1962 is to be counted from the date of finalisation of the provisional assessment and not from the date of provisional assessment or from the date of rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of duty raised after more than six months of the completion of assessment was time barred. [para 14] In the case of Otoklin Plants and Equipments Ltd. reported at 2002 (150) E.L.T. 123, Hon'ble Tribunal held that assessments made on provisional basis and are sought to be finalized under Section 18 of Customs Act, 1962 and not under Section 28 of the Act." (ii) The perusal of the notices indicate that they do not spell out any clear cut reasons as to why the oil under import is not held to be 'edible grade' or 'non edible grade' to be hit by the clauses, nor does it give any reasons why Notifications No. 139/99 and No. 140/99, dated 30-12-1999 should be applicable and the benefits availed under Notification 209/99-Cus by the importer should be set aside. The order of the lower authority also does not consider or bring out any reasons for the same. The Commissioner of Customs (Appeals) order however relies upon the Deputy Chief Chemist of Customs' test report No. T.R.No. 610/Gr.I/99, dated 29-12-1999 which were not a document relied upon in the notices or/and by the lower authorities. The orders of the Assistant Commissioner of Customs, Gp.I which was in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rubber stamp 'Provisional Duty'. He will endorse the appraisement order on the original B/E and ask the Shed Staff to draw representative samples and to send them direct to the Dy. Chief Chemist (DCC) or Incharge Laboratory, Custom House for chemical test in accordance with the usual procedure. In such cases the Scrutinising Appraiser, if necessary, will specify the number of packages to be opened for drawal of required samples. For his satisfaction the Shed Appraiser may also select the number of packages to be opened for drawal of samples in addition to those specified by the Scrutinising Appraiser." (Emphasis supplied) This procedure was required to be followed. (b) To examine the facts, as regards, whether the assessments were provisional, and whether the instructions in the Customs Appraising Manual were followed, the Joint C.D.R. was directed by the Bench to produce the relevant provisional assessment/bond registers and the Group Assessment files pertaining to these assessments. The Joint C.D.R. has placed on record, a letter submitting that the Provisional Assessment Register could not be produced, claiming the same to be misplaced due to shifti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the words 'subject to test report/finalisation of I.G.M.' added in hand in the last sentence. All these handwritten, interpolations, additions, deletions are in black colour ink. While the Appraising Group I (abbreviated as A.O.G.I is initialled in ink with red colour, dated 29/12 and Assistant Commissioner, Group I (abbreviated as A/C G.I) initialled with blue ink with the date 29/XII. It is well known, and the instructions provide, that Appraising Officers have to use red ink, while the Assistant Commissioner need not use red ink. The additions/ deletions of the typewritten note are therefore not altered by any one of these two officers contemporaneously on 29/12. It has been made in black ink. The striking of the typed words 'completed' by a line drawn through it and overwriting the words 'assessed prov' on top would only demonstrate, a subsequent attempt to change the earlier intent of 'complete assessments' as per this note effected to provisional assessments, now being campaigned/envisaged. Due to this interpolation which is a crude and doubtful forging or and fudging, of records, appears to have been made for purposes other than revealing the fact of the nature of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect that duty leviable on such goods pending production xxxx, be assessed provisional……..". This statutory direction has to be an 'order' and cannot be assumed. CBEC's Customs Manual and Instructions issued on 11-9-2001 for information of general public in Chapter 7 on provisional assessment at para 3 which stipulates that the proper officer of Customs is to 'order provisional assessment'. Para 7 of this Chapter 7 provides for finalising of provisional assessment within six months of such provisional assessments ordered. If the assessment on 29-12-1999 was provisional, it was required to be finalised within six months from that date as per these instructions. (f) The present BEs have been noted and assessed on prior entry bill on 29-12-1999 and the vessel was granted entry inwards and goods cleared on 4-1-2000. Therefore, as per the provisions of Section 15 (1) of the Customs Act, 1962, that would be the date of presentation of the BE in this case and six months demand period under Section 28(1) of the Customs Act, 1962 would expire on 31-7-2001. The demands issued without invoking the proviso clause of Section 28(1) of the Customs Act, 1962 in this case on 4-8-2000, therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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