· 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. [Though CBEC Manual 2011 - Chap.3 Para 3.6 - says that the importer / exporter can seek an assessment order, the provisions of the law would prevail over. So the proper officer shall pass order even where the importer/exporter do not seek.]
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.
· 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 andadjudication 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. 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.