Page 227 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMR. OF CENTRAL EXCISE, BHARUCH v. HINDALCO INDUSTRIES LTD. 409

at the time of import. The price of Copper concentrate is determined by the
noticees based on the actual percentage content of Copper and the price of
Copper as per London Metal Exchange. Since it is not possible to determine
the exact value of copper at the time of import, they will provisionally as-
sess the bill of entry on ad valorem basis in terms of Section 14 read with Sec-
tion 18 of the Customs Act, 1962. Further they have filed Bills of Entry for
home consumption with customs department for provisional assessment .of
duties. After provisional assessment of duties, duty is accordingly paid by
them and the imported goods are transported to the factory for use in man-
ufacture of finished goods. After receipt of the goods in the factory, they are
availing Cenvat Credit of CVD and SAD paid by them on provisionally as-
sessed value.
Further if the value of the copper concentrate is determined to be less than
the value of declared under provisional assessment, they are claiming re-
fund of excess BCD (including cess) paid on the difference of value between
provisional and find assessment in terms of Section 18(2)(a) of the Customs
Act, 1962. It is also contended that they have not filed any refund claim for
the difference of duty arises at the time of provisional assessment and after
final assessment. For that they submitted Order-in-Original No.
110/DC/SRT/Refund/2014, dated 29-12-2014 passed by Deputy Commis-
sioner against B/E No. F-04/13-14, dated 22-4-2013 for Rs. 2835395/-. The
aforementioned practice upon finalization of assessment i.e. filing for’ re-
fund of one component of the bills of entry i.e. BCD (including Cess) and
adjusting from Cenvat credit of the other components of bills of entry i.e.
CVD and SAD in case where the final value is lesser titan the provisionally
assessed value, is followed by them since the time of their inception.
15. It is relevant to go through the provisions of provisional assessment of
duty as per Section 18 of the Customs Act, 1962 and Rule 3 of Cenvat Credit
Rules, 2004 & Rule 9 of the Cenvat Credit Rules, 2004. The relevant portions
are as under :
SECTION 18. Provisional assessment of duty. - [(1) Notwith-
standing anything contained in this Act but without prejudice to the
provisions of section 46, —
(a) where the importer or exporter is unable to make self-
assessment under sub-section (1) of Section 17 and makes a
request in writing to the proper officer for assessment; or
(b) where the proper officer deems it necessary to subject any im-
ported goods or export goods to any chemical or other test; or
(c) where the importer or exporter has produced all the necessary
documents and furnished full information but the proper of-
ficer deems it necessary to make further enquiry; or
(d) where necessary documents have not been produced or in-
formation has not been furnished and the proper officer
deems it necessary to make further enquiry,
the proper officer may direct that the duty leviable on such goods
be assessed provisionally if the importer or the exporter, as the case
may be, furnishes such security as the proper officer deems fit for
the payment of the deficiency, if any, between the duty as may be
finally assessed or re-assessed as the case may be, and the duty
provisionally assessed.
EXCISE LAW TIMES  1st August 2020  227