·
S.17[(5): Where
any assessment is done contrary to the claim of the importer, the Proper
officer shall pass a speaking order within fifteen days from the date of
assessment. [This is mandatory whether the party seeks a speaking order or not - CBEC Manual says the party may seek an order. Please see comments at the bottom]
The importer / exporter would
pay the fine in lieu of confiscation, penalty if any and duty. Filing a
fresh BE/SB or getting the BE or SB amended NOT provided for. [Though CBEC Manual 2011 - Chap.3 Para 3.6 - says that the importer / exporter can seek an assessment order, but the proper officer shall pass order even where the importer/exporter do not seek.]
·
In cases where any assessment done is contrary
to the claim of the importer u/s 46 or exporter u/s 50 regarding valuation of
goods, classification, exemption etc., the proper officer and where the
importer or the exporter, as the case may be, confirms his acceptance of the
said assessment in writing the assessment becomes final. The importer/Exporter cannot go on appeal
since there was no grievance at the time of assessment.
· ·
When an assessment becomes final,
the proper officer does not have jurisdiction to reopen the assessment and re-assess except in first appraisement cases where the declaration is not found true. [Section 17(4)].
·
S.17 (4):Any information so furnished in the Bill of Entry or
Shipping Bill is not true in respect of any matter relevant to the assessment, adjudication
proceedings are to be initiated for contravention of s.111 (m) and if the order
passed necessitates demand of differential duty, reassessment is done.
·
But if it is found, after clearance of the goods, that any information furnished in the
Bill of Entry or Shipping Bill is not true in respect of any matter relevant to
the assessment, case has to be registered and adjudication proceedings are initiated after due
investigation. On the basis of the orders passed the importer would pay the
fine in lieu of confiscation, penalty and duty, if any. Neither any amendment of the
Bill of Entry or Shipping Bill is done nor any re-assessment is permissible.
·
In situations where the importer requests for amendment u/s 149, it should be borne in mind that the
importer/Exporter had u/s 46 (4) /s.50 (2) already made and subscribed to a
declaration as to the truth of the contents of such bill of entry and shall, in
support of such declaration, produce to the proper officer the invoice, if any,
relating to the imported goods. Proper investigation should be conducted as to
the circumstances leading to such untruth.
That is why there is no provision in the law for re-assessment as a
consequence of the amendment u/s 149.
·
In case an importer turns up and says that the invoice
amount is now more and he wants to pay appropriate duty, reassessment is not
permissible (re-assessment available only in respect of first appraisement where
untruth of information detected before clearance). Not even amendment of BE available since the invoice could not have been in existence at the time of clearance. (proviso
to s.149) Had it been in existence then untruth sets in and contravention of
s.111 (m) occurs. The only course is to
go in for adjudication proceedings where the adjudicating authority might
demand differential duty, who may refrain from imposing fine in lieu of
confiscation and or penalty since the importer himself comes forward to pay
additional duty. There is no provision
in law to amend the BE in such situations.
· Provisional
Assessment of duty u/s 18 (1) Provisional
Assessment of duty is made only in the three situations mentioned u/s 18 (1)
(a), 18 (1) (b), and 18 (1) (c). In all the three situations,
due follow up action need to be taken in right earnest - to get the documents
from the importer or to get the test result or to complete the further enquiry.
In the interest of the trade, it is the responsibility of the
department to take day to day action. Provisional assessment cannot be
done unless the proper officer conducts an enquiry by the subject import which
is pending. Investigation or inquiry done by other agencies or in respect
of other imports cannot bind the assessing proper officer towards ordering
provisional assessment of duty.
·
Finalisation of
provisional assessment:
