C.L. GUPTA Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THE appeal has been filed against the rejection of refund claim of Rs. 97,969/ - made on 26 -2 -05 being an amount of interest on duty paid on 29 -4 -05 in respect of Bill of Entry No. 4217 dt. 19 -3 -04. Refund claim has been rejected on the ground that assessment order made by proper officer was not challenged and Commissioner (Appeals) also upheld the same relying upon the judgment of Supreme Court in Priya Blue Industries [2004 (172) E.L.T. 145 (S.C.)] case. The appellant has taken a stand that calculation of interest was not an assessment and therefore question of challenging the same did not arise and since they had paid duty within 5 days after they receive the bill of entry, question of interest should not arise.

(2.) ON behalf of the appellant, a written submission was made and Shri Sameer Chitkara, learned SDR appears on behalf of the Revenue. The appellants have argued that Priya Blue Industries judgment of Apex Court is not applicable to the present case on fact that since Priya Blue Industries involved issue of refund of customs duty whereas the present case relates to refund of interest. The appellant also states that Bill of entry was assessed on 26 -2 -04, but the asessement memorandum was struck down by the apprising officer which clearly shows that there was no assessment on that date. They also reiterated the contention by them before lower authorities that bill of entry was assessed on 27 -4 -05 and return to them thereafter and they had paid duty on 29 -4 -05 i.e. within 2 days from the date of assessment. Therefore, the interest was not chargeable and they are entitled to refund.

(3.) I find that assessment of bill of entry has been made under Section 17. As per Section 17 after obtaining the required documents and chemical test/ examination of goods felt necessary, assessment will be made. Section 17 does not speak of calculation or any liability or interest. Therefore, there is a considerable force in the contention of the appellant that levy of interest is not part of the assessment. This is further confirmed by the fact that interest liability of the importer arises from the provisions of Section 47 which reads as under : Where the importer fails to pay the import duty under sub -section (1), within 5 days excluding holidays from the date on which the bill of entry is returned to him for payment of duty, he shall pay the interest.....