IVA DETECTION OF ILLEGALLY IMPORTED GOODS AND PREVENTION OF THE DISPOSAL THEREOF  

 

11A Definitions  

 

11A. In this chapter unless the context otherwise requires -

 

(a) "illegal import" means the import of any goods in contravention of the provisions of this Act or any other law for the time being in force;

 

(b) "intimated place" means a place intimated under sub-section (1), sub-section (2) or sub-section (3) as the case may be of section 11C;

 

(c) "notified date" in relation to goods of any description means the date on which the notification in relation to such goods is issued under section 11B;

 

(d) "notified goods" means goods specified in the notification issued under section 11B.

 

11B. Power of Central Government to notify goods  

 

11B. If having regard to the magnitude of the illegal import of goods of any class or description the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import circulation or disposal of such goods or facilitating the detection of such goods it may by notification in the Official Gazette specify goods of such class or description.

 

11C. Persons possessing notified goods to intimate the place of storage etc.  

 

11C. (1) Every person who owns possesses or controls on the notified date any notified goods shall within seven days from that date delivery to the proper officer a statement (in such form in such manner and containing such particulars as may be specified by rules made in this behalf) in relation to the notified goods owned possessed or controlled by him and the place where such goods are kept or stored.

 

(2) Every person who acquires after the notified date any notified goods shall before making such acquisition deliver to the proper officer an intimation containing the particulars of the place where such goods are proposed to be kept or stored after such acquisition and shall immediately on such acquisition deliver to the proper officer a statement (in such form in such manner and containing such particulars as may be specified by the rules made in this behalf) in relation to the notified goods acquired by him :

 

Provided that a person who has delivered a statement whether under sub-section (1) or sub-section (2) in relation to any notified goods owned possessed controlled or acquired by him shall not be required to deliver any further statement in relation to any notified goods acquired by him after the date of delivery of the said statement so long as the notified goods so acquired are kept or stored at the intimated place.

 

(3) If any person intends to shift any notified goods to any place other than the intimated place he shall before taking out such goods from the intimated place deliver to the proper officer an intimation containing the particulars of the place to which such goods are proposed to be shifted.

 

(4) No person shall after the expiry of seven days from the notified date keep or store any notified goods at any place other than the intimated place.

 

(5) Where any notified goods have been sold or transferred such goods shall not be taken from one place to another unless they are accompanied by the voucher referred to in section 11F.

 

(6) No notified goods (other than those which have been sold or transferred) shall be taken from one place to another unless they are accompanied by a transport voucher (in such form and containing such particulars as may be specified by the rules made in this behalf) prepared by the persons owning possessing or controlling such goods.

 

11D. Precautions to be taken by persons acquiring notified goods  

 

11D. No person shall acquire (except by gift or succession from any other individual in India) after the notified date any notified goods -

 

(i) unless such goods are accompanied by -

 

(a) the voucher referred to in section 11F or the memorandum referred to in sub-section (2) of section 11G as the case may be; or

 

(b) in the case of a person who has himself imported any goods any evidence showing clearance of such goods by the Customs Authorities; and

 

(ii) unless he has taken before acquiring such goods from a person other than a dealer having a fixed place of business such reasonable steps as may be specified by rules made in this behalf to ensure that the goods so acquired by him are not goods which have been illegally imported.

 

11E. Persons possessing notified goods to maintain accounts  

 

11E. (1) Every person who on or after the notified date owns possesses controls or acquires any notified goods shall maintain (in such form and in such manner as may be specified by rules made in this behalf) a true and complete account of such goods and shall as often as he acquires or parts with any notified goods made an entry in the said account in relation to such acquisition or parting with and shall also state therein the particulars of the persons from whom such goods have been acquired or in whose favour such goods have been parted with  as the case may be and such account shall be kept along with the goods at the place of storage of the notified goods to which such accounts relate :

 

Provided that it shall not be necessary to maintain separately accounts in the form and manner specified by the rules made in this behalf in the case of a person who is already maintaining accounts which contain the particulars specified by the said rules.

 

(2) Every person who owns possesses or controls any notified goods and who uses any such goods for the manufacture of any other goods shall maintain (in such form in such manner and containing such particulars as may be specified by rules made in this behalf) a true and complete account of the notified goods so used by him and shall keep such account at the intimated place. .

 

11F. Sale etc. of notified goods to be evidenced by vouchers  

 

11F. On and from the notified date no person shall sell or otherwise transfer any notified goods unless every transaction in relation to the sale or transfer of such goods is evidenced by a voucher in such form and containing such particulars as may be specified by rules made in this behalf.

 

11G. Sections 11C 11E and 11F not to apply to goods in personal use  

 

11G. (1) Nothing in sections 11C 11E and 11F shall apply to any notified goods which are -

 

(a) in personal use of the person by whom they are owned possessed or controlled or

 

(b) kept in the residential premises of a person for his personal use.

 

(2) If any person who is in possession of any notified goods referred to in sub-section (1) sells or otherwise transfers for a valuable consideration any such goods he shall issue to the purchaser or transferee as the case may be a memorandum containing such particulars as may be specified by the rules made in this behalf and no such goods shall be taken from one place to another unless they are accompanied by the said memorandum.

 

IVB PREVENTION OR DETECTION OF ILLEGAL EXPORT OF GOODS  

 

11H. Definitions  

 

11H. In this chapter unless the context otherwise requires -

 

(a) "illegal export" means the export of any goods in contravention of the provisions of this Act or any other law for the time being in force;

 

(b) "intimated place" means a place intimated under sub-section (1), sub-section (2) or sub-section (3) as the case may be of section 11J;

 

(c) "specified area" includes the Indian customs waters and such inland area not exceeding one hundred kilometres in width from any coast or other border of India as the Central Government may having regard to the vulnerability of that area to smuggling by notification in the Official Gazette specify in this behalf :

 

Provided that where a part of any village town or city falls within a specified area the whole of such village town or city shall notwithstanding that the whole of it is not within one hundred kilometres from any coast or other border of India be deemed to be included in such specified area;

 

(d) "specified date" in relation to specified goods means the date on which any notification is issued under section 11-I in relation to those goods in any specified area;

 

(e) "specified goods" means goods of any description specified in the notification issued under section 11-I in relation to a specified area.

 

11-I. Power of Central Government to specify goods  

 

11-I. If having regard to the magnitude of the illegal export of goods of any class or description the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal export or facilitating the detection of goods which are likely to be illegal exported it may by notification in the Official Gazette specify goods of such class or description.

 

11J. Persons possessing specified goods to intimate the place of storage etc.  

 

11J. (1) Every person who owns possesses or controls on the specified date any specified goods the market price of which exceeds fifteen thousand rupees shall within seven days from that date deliver to the proper officer an intimation containing the particulars of the place where such goods are kept or stored within the specified area.

 

(2) Every person who acquires (within the specified area) after the specified date any specified goods -

 

(i) the market price of which or

 

(ii) the market price of which together with the market price of any specified goods of the same class or description if any owned possessed or controlled by him on the date of such acquisition exceeds fifteen thousand rupees shall before making such acquisition deliver to the proper officer an intimation containing the particulars of the place where such goods are proposed to be kept or stored after such acquisition :

 

Provided that a person who has delivered an intimation whether under sub-section (1) or sub-section (2) in relation to any specified goods owned possessed controlled or acquired by him shall not be required to deliver any further intimation so long as the specified goods are kept or stored at the intimated place.

 

(3) If any person intends to shift any specified goods to which sub-section (1) or sub-section (2) applies to any place other than the intimated place he shall before taking out such goods from the intimated place deliver to the proper officer an intimation containing the particulars of the place to which such goods are proposed to be shifted.

 

(4) No person shall after the expiry of seven days from the specified date keep or store any specified goods to which sub-section (1) or sub-section (2) applies at any place other than the intimated place.

 

11K. Transport of specified goods to be covered by vouchers  

 

11K. (1) No specified goods shall be transported from into or within any specified area or loaded on any animal or conveyance in such area unless they are accompanied by a transport voucher (in such form and containing such particulars as may be specified by rules made in this behalf) prepared by the person owning possessing controlling or selling such goods :

 

Provided that no transport voucher shall be necessary for the transport within a village town or city of any specified goods the market price of which on the date of transport  does not exceed one thousand rupees.

 

(2) Notwithstanding anything contained in sub-section (1) where the Central Government after considering the nature of any specified goods the time mode route and the market price of the goods intended to be transported the purpose of the transportation and the vulnerability of the specified area with regard to the illegal export of such goods is satisfied that it is expedient in the public interest so to do it may -

 

(i) by notification in the Official Gazette specify goods of such class or description and of a market price exceeding such sum as that government may notify; and different sums in relation to the specified goods of the same class or description or different classes or descriptions may be notified for the same specified area or for different specified areas and

 

(ii) direct that no person shall transport any goods so specified unless the transport voucher in relation to them has been countersigned by the proper officer.1L. 11L.    

 

11  11L. 11111111111  111111        11  !!    111111L.

 

11L. Persons possessing specified goods to maintain accounts  

 

11L. (1) Every person who on or after the specified date owns possesses or controls within a specified area any specified goods of a market price exceeding fifteen thousand rupees shall maintain (in such form and in such manner as may be specified by rules made in this behalf) a true and complete account of such goods and shall as often as he acquires or parts with any specified goods make an entry in the said account in relation to such acquisition or parting with and shall also state therein the particulars of the person from whom such goods have been acquired or in whose favour such goods have been parted with as the case may be and such account shall be kept along with the goods at the place of storage of the specified goods to which such accounts relate :

 

Provided that it shall not be necessary to maintain separately accounts in the form and manner specified by rules made in this behalf in the case of a person who is already maintaining accounts which contain the particulars specified by the said rules.

 

(2) Every person who owns possesses or controls any specified goods to which the provisions of sub-section (1) apply and who uses any such goods for the manufacture of any other goods shall maintain (in such form in such manner and containing such particulars as may be specified by rules made in this behalf) a true and complete account of the specified goods so used by him and shall keep such account at the intimated place.

 

(3) If at any time on a verification made by a proper officer it is found that any specified goods owned possessed or controlled by a person are less in quantity than the stock of such goods as shown at the time of such verification in the account referred to in sub-section (1) read with the accounts referred to in sub-section (2) it shall be presumed unless the contrary is proved that such goods to the extent that they are less than the stock shown in the said accounts have been illegally exported and that the person owning possessing or controlling such goods has been concerned with the illegal export thereof.

 

11M. Steps to be taken by person selling or transferring any specified goods  

 

11M. Except where he receives payment by cheque drawn by the purchaser every person who sells or otherwise transfers within any specified area any specified goods shall obtain on his copy of the sale or transfer voucher the signature and full postal address of the person to whom such a sale or transfer is made and shall also take such other reasonable steps as may be specified by rules made in this behalf to satisfy himself as to the identity of the purchaser of the transferee as the case may be and if after an inquiry made by a proper officer it is found that the purchaser or the transferee as the case may be is not either readily traceable or is a fictitious person it shall be presumed unless the contrary is proved that such goods have been illegally exported and the person who had sold or otherwise transferred such goods had been concerned in such illegal export :

 

Provided that nothing in this section shall apply to petty sales of any specified goods if the aggregate market price obtained by such petty sales made in the course of a day does not exceed two thousand and five hundred rupees.

 

Explanation : In this section "petty sale" means a sale at a price which does not exceed one thousand rupees.

 

IV-C POWER TO EXEMPT FROM THE PROVISIONS OF CHAPTERS IV-A AND IV-B  

 

11N. Power to exempt  

 

11N. If the Central Government is satisfied that it is necessary in the public interest so to do it may by notification in the Official Gazette exempt generally either absolutely or subject to such conditions as may be specified in the notification goods of any class or description from all or any of the provisions of Chapter IVA or Chapter IVB.

 

V LEVY OF AND EXEMPTION FROM CUSTOMS DUTIES  

 

12. Dutiable goods  

 

12. (1) Except as otherwise provided in this Act or any other law for the time being in force duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act 1975 (51 of 1975) or any other law for the time being in force on goods imported into or exported from India.

 

(2) The provisions of sub-section (1) shall apply in respect of all goods belonging to government as they apply in respect of goods not belonging to Government.

 

13. Duty on pilfered goods  

 

13. If any imported goods are pilfered after the unloading thereof and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse the importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage.

 

14. Valuation of goods for purposes of assessment  

 

14. (1) For the purposes of the Customs Tariff Act 1975 (51 of 1975) or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value the value of such goods shall be deemed to be -

 

(a) the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation or exportation as the case may be in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale :

 

Provided that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46 or a shipping bill or bill of export as the case may be is presented under section 50;

 

(1A) Subject to the provisions of sub-section (1) the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf.

 

(2) Notwithstanding anything contained in sub-section (1) or sub-section (1A) if the Central Government is satisfied that it is necessary or expedient so to do it may by notification in the Official Gazette fix tariff values for any class of imported goods or export goods having regard to the trend of value of such or like goods and where any such tariff values are fixed the duty shall be chargeable with reference to such tariff value.

 

(3) For the purposes of this section -

 

(a) "rate of exchange" means the rate of exchange -

 

(i) determined by the Central Government or

 

(ii) ascertained in such manner as the Central Government may direct for the conversion of Indian currency into foreign currency or foreign currency into Indian currency.

 

(b) "foreign currency" and "Indian currency" have the meanings respectively assigned to them in the Foreign Exchange Regulation Act 1973 (46 of 1973)

 

15. Date for determination of rate of duty and tariff valuation of imported goods  

 

15. (1) The rate of duty and tariff valuation if any applicable to any imported goods shall be the rate and valuation in force -

 

(a) in the case of goods entered for home consumption under section 46 on the date on which a bill of entry in respect of such goods is presented under that section;

 

(b) in the case of goods cleared from a warehouse under section 68 on the date on which the goods are actually removed from the warehouse;

 

(c) in the case of any other goods on the date of payment of duty :

 

Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival as the case may be.

 

(2) The provisions of this section shall not apply to baggage and goods imported by post.

 

16. Date for determination of rate of duty and tariff valuation of export goods  

 

16. (1) The rate of duty and tariff valuation if any applicable to any export goods shall be the rate and valuation in force -

 

(a) in the case of goods entered for export under section 50 on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51;

 

(b) in the case of any other goods on the date of payment of duty.

 

(2) The provisions of this section shall not apply to baggage and goods exported by post.

 

17. Assessment of duty  

 

17. (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 the imported goods or the export goods as the case may be or such part thereof as may be necessary may without undue delay be examined and tested by the proper officer.

 

(2) After such examination and testing the duty if any leviable on such goods shall save as otherwise provided in section 85 be assessed.

 

(3) For the purpose of assessing duty under sub-section (2) the proper officer may require the importer exporter or any other person to produce any contract broker's note policy insurance catalogue or other document whereby the duty leviable on the imported goods or export goods as the case may be can be ascertained and to furnish any information required for such ascertainment which it is in his power to produce or furnish and thereupon the importer exporter or such other person shall produce such document and furnish such information.

 

(4) Notwithstanding anything in this section imported goods or export goods may prior to the examination or testing thereof be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment the goods may without prejudice to any other action which may be taken under this Act be re-assessed to duty.

 

18. Provisional assessment of duty  

 

18. (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in section 46 -

 

(a) where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the assessment of duty on the imported goods or the export goods as the case may be; or

 

(b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test for the purpose of assessment of duty thereon; or

 

(c) where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty the proper officer may direct that the duty leviable on such goods may pending the production of such documents or furnishing of such information or completion of such test or enquiry 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 finally assessed and the duty provisionally assessed.

 

(2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act then -

 

(a) in the case of goods cleared for home consumption or exportation the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of or is in excess of the duty finally assessed the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund as the case may be;

 

(b) in the case of warehoused goods the proper officer may where the duty finally assessed is in excess of the duty provisionally assessed require the importer to execute a bond binding himself in a sum equal to twice the amount of the excess duty.

 

19. Determination of duty where goods consist of articles liable to different rates of duty  

 

19. Except as otherwise provided in any law for the time being in force where goods consist of a set of articles duty shall be calculated as follows :-

 

(a) articles to duty with reference to quantity shall be chargeable to that duty;

 

(b) articles liable to duty with reference to value shall if they are liable to duty at the same rate be chargeable to duty at that rate and if they are liable to duty at different rates be chargeable to duty at the highest of such rates;

 

(c) articles not liable to duty shall be chargeable to duty at the rate at which articles liable to duty with reference to value are liable under clause (b) :

 

Provided that -

 

(a) accessories of and spare parts or maintenance and repairing implements for any article which satisfies the conditions specified in the rules made in this behalf shall be chargeable at the same rate of duty as that article;

 

(b) if the importer produces evidence to the satisfaction of the proper officer regarding the value of any of the articles liable to different rates of duty such article shall be chargeable to duty separately at the rate applicable to it.

 

20. Re-importation of goods produced or manufactured in India  

 

20. (1) If goods are imported into India after exportation therefrom such goods shall be liable to duty and be subject to all the conditions and restrictions if any to which goods of the like kind and value are liable or subject on the importation thereof.

 

21. Goods derelict wreck etc.  

 

21. All goods derelict jetsam flotsam and wreck brought or coming into India shall be dealt with as if they were imported into India unless it be shown to the satisfaction of the proper officer that they are entitled to be admitted duty-free under this Act.

 

22. Abatement of duty on damaged or deteriorated goods  

 

22. (1) Where it is shown to the satisfaction of the Assistant Commissioner of Customs -

 

(a) that any imported goods had been damaged or had deteriorated at any time before or during the unloading of the goods in India; or

 

(b) that any imported goods other than warehoused goods had been damaged at any time after the unloading thereof in India but before their examination under section 17 on account of any accident not due to any willful act negligence or default of the importer his employee or agent; or

 

(c) that any warehoused goods had been damaged at any time before clearance for home consumption on account of any accident not due to any willful act negligence or default of the owner his employee or agent such goods shall be chargeable to duty in accordance with the provisions of sub-section (2).

 

(2) The duty to be charged on the goods referred to in sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration.

 

(3) For the purposes of this section the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner :-

 

(a) the value of such goods may be ascertained by the proper officer or

 

(b) such goods may be sold by the proper officer by public auction or by tender or with the consent of the owner in any other manner and the gross sale proceeds shall be deemed to be the value of such goods.

 

23. Remission of duty on lost destroyed or abandoned goods  

 

23. (1) Without prejudice to the provisions of section 13 where it is shown to the satisfaction of the Assistant Commissioner of Customs that any imported goods have been lost otherwise than as a result of pilferage) or destroyed at any time before clearance for home consumption the Assistant Commissioner of Customs shall remit the duty on such goods.

 

(2) The owner of any imported goods may at any time before an order for clearance of the goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon.

 

24. Power to make rules for denaturing or mutilation of goods  

 

24. The Central Government may make rules for permitting at the request of the owner the denaturing or mutilation of imported good which are ordinarily used for more than one purpose so as to render them unfit for one or more of such purposes; and where any goods are so denatured or mutilated they shall be chargeable to duty at such rate as would be applicable if the goods had been imported in the denatured or mutilated form.

 

25. Power to grant exemption from duty  

 

25. (1) If the Central Government is satisfied that it is necessary in the public interest so to do it may by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.

 

(2) If the Central Government is satisfied that it is necessary in the public interest so to do it may by special order in each case exempt from the payment of duty under circumstances of an exceptional nature to be stated in such order any goods on which duty is leviable.

 

(3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty.

 

Explanation : "Form or method" in relation to a rate of duty of customs means the basis namely valuation weight number length area volume or other measure with reference to which the duty is leviable.

 

26. Refund of export duty in certain cases  

 

26. Where on the exportation of any goods any duty has been paid such duty shall be refunded to the person by whom or on whose behalf it was paid if -

 

(a) the goods are returned to such person otherwise than by way of re-sale;

 

(b) the goods are re-imported within one year from the date of exportation; and

 

(c) an application for refund of such duty is made before the expiry of six months from the date on which the proper officer makes an order for the clearance of the goods.

 

27. Claim for refund of duty  

 

27. (1) Any person claiming refund of any duty and interest if any paid on such duty -

 

(a) paid by him in pursuance of an order of assessment; or

 

(b) borne by him may make an application for refund of such duty and interest if any paid on such duty to the Assistant Commissioner of Customs -

 

(a) in the case of any import made by any individual for his personal use or by government or by any educational research or charitable institution or hospital before the expiry of one year;

 

(b) in any other case before the expiry of six months. from the date of payment of duty and interest if any paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest if any paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any paid on such duty had not been passed on by him to any other person :

 

Provided that where an application for refund has been made before the commencement of the Central Excise & Customs Laws (Amendment) Act 1991 such applications shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2).

 

Provided Further that the limitation of one year or six month as the case may be shall not apply where any duty and interest if any paid on such duty has been paid under protest.

 

Provided Also that in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2 ) of section 25 the limitation of one year or six months as the case may be shall be computed from the date of issue of such order.

 

Explanation : For the purposes of this sub-section the date of payment of duty and interest, if any, paid on such duty in relation to a person other than the importer shall be construed as "the date of purchase of goods" by such person.

 

(2) If on receipt of any such application the Assistant Commissioner of Customs is satisfied that the whole or any part of the duty and interest if any paid on such duty paid by the applicant is refundable he may make an order accordingly and the amount so determined shall be credited to the Fund :

 

Provided that the amount of duty and interest if any paid on such duty as determined by the Assistant Commissioner of Customs under the foregoing provisions of this sub-section shall instead of being credited to the Fund be paid to the applicant if such amount is relatable to -

 

(a) the duty and interest if any paid on such duty paid by the importer if he had not passed on the incidence of such duty and interest if any paid on such duty to any other person;

 

(b) the duty and interest if any paid on such duty on imports made by an individual for his personal use;

 

(c) the duty and interest if any paid on such duty borne by the buyer if he had not passed on the incidence of such duty and interest if any paid on such duty to any other person;

 

(d) the export duty as specified in section 26;

 

(e) drawback of duty payable under sections 74 and 75;

 

(f) the duty and interest if any paid on such duty borne by any other such class of applicants as the Central Government may by notification in the Official Gazette specify :

 

Provided Further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest if any paid on such duty has not been passed on by the persons concerned to any other person.

 

(3) Notwithstanding anything to the contrary contained in any judgment decree order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the regulations made thereunder or any other law for the time being in force no refund shall be made except as provided in sub-section (2).

 

(4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament if it is sitting as soon as may be after the issue of the notification and if it is not sitting within seven days of its re-assembly and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect the notification shall thereafter have effect only in such modified form or be of no effect as the case may be but without prejudice to the validity of anything previously done thereunder.

 

(5) For the removal of doubts it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2) including any such notification approved or modified under sub-section (4) may be rescinded by the Central Government at any time by notification in the Official Gazette.

 

27A. Interest on delayed refunds  

 

27A. If any duty ordered to be refunded under sub-section (2) of section 27 to an applicant is not refunded with three months from the date of receipt of application under sub-section (1) of that section there shall be paid to that applicant interest at such rate not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Board on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty :

 

Provided that where any duty ordered to be refunded under sub-section (2) of section 27 in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill 1995 receives the assent of the President is not refunded within three months months from such date there shall be paid to the applicant interest under this section from the date immediately after three months from such date till the date of refund of such duty.

 

Explanation : Where any order of refund is made by the Commissioner (Appeals) Appellate Tribunal or any court against an order of the Assistant Commissioner of Customs under sub-section (2) of section 27 the order passed by the Commissioner (Appeals) Appellate Tribunal or as the case may be by the court shall be deemed to be an order passed under that sub-section for the purposes of this section.

 

28. Notice for payment of duties interest etc.  

 

28. (1) When any duty has not been levied or has been short-levied or erroneously refunded or when any interest payable has not been paid part paid or erroneously refunded the proper officer may -

 

(a) in the case of any import made by any individual for his personal use or by government or by any educational research or charitable institution or hospital within one year;

 

(b) in any other case within six months from the relevant date service notice on the person chargeable with the duty or interest which has not been levied or charged or which has been short-levied or part paid or to whom the refund has erroneously been made requiring him to show cause why he should not pay the amount specified in the notice.

 

Provided that where any duty has been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter the provisions of this sub-section shall have effect as if for the words "one year" and "six months" the words "five years" were substituted.

 

Explanation : Where the service of the notice is stayed by an order of a court the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years as the case may be.

 

(2) The proper officer after considering the representation if any made by the person on whom notice is served under sub-section (1) shall determine the amount of duty or interest due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.

 

(3) For the purposes of sub-section (1) the expression "relevant date" means -

 

(a) in a case where duty is not levied or interest is not charged the date on which the proper officer makes an order for the clearance of the goods;

 

(b) in a case where duty is provisionally assessed under section 18 the date of adjustment of duty after the final assessment thereof;

 

(c) in a case where duty or interest has been erroneously refunded the date of refund;

 

(d) in any other case the date of payment of duty or interest.

 

28A. Power not to recover duties not levied or short-levied as a result of general practice  

 

28A. (1) Notwithstanding anything contained in this Act if the Central Government is satisfied-

 

(a) that a practice was or is generally prevalent regarding levy of duty (including non-levy thereof) on any goods imported into or exported from India; and

 

(b) that such goods were or are liable -

 

(i) to duty in cases where according to the said practice the duty was not or is not being levied or

 

(ii) to a higher amount of duty than what was or is being levied according to the said practice then the Central Government may by notification in the Official Gazette direct that the whole of the duty payable on such goods or as the case may be the duty in excess of that payable on such goods but for the said practice shall not be required to be paid in respect of the goods on which the duty was not or is not being levied or was or is being short-levied in accordance with the said practice.

 

(2) Where any notification under sub-section (1) in respect of any goods has been issued the whole of the duty paid on such goods or as the case may be the duty paid in excess of that payable on such goods which would not have been paid if the said notification had been in force shall be dealt with in accordance with the provisions of sub-section (2) of section 27 :

 

Provided that the person claiming the refund of such duty or as the case may be excess duty makes an application in this behalf to the Assistant Commissioner of Customs in the form referred to in sub-section (1) of section 27 before the expiry of six months from the date of issue of the said notification.

 

28AA. Interest on delayed payment of duty  

 

28AA. Subject to the provisions contained in section 28AB where a person chargeable with the duty determined under sub-section (2) of section 28 fails to pay such duty within three month from the date of such determination he shall pay in addition to the duty interest at such rate not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Board on such duty from the date immediately after the expiry of the said period of three months till the date of payment of such duty :

 

Provided that where a person chargeable with duty determined under sub-section (2) of section 28 before the date on which the Finance Bill 1995 received the assent of the President fails to pay such duty within three months from such date then such person shall be liable to pay interest under this section from date immediately after three months from such date till the date of payment of such duty.

 

Explanation 1 : Where the duty determined to be payable is reduced by the Commissioner (Appeals) Appellate Tribunal or as the case may be the court the date of such determination shall be the date on which an amount of duty is first determined to be payable.

 

Explanation 2 : Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals) Appellate Tribunal or as the case may be the court the date of such determination shall be -

 

(a) for the amount of duty first determined to be payable the date on which the duty is so determined;

 

(b) for the amount of increased duty the date of order by which the increased amount of duty is first determined to be payable;

 

(c) for the amount of further increase of duty the date of order on which the duty is so further increased.

 

28AB. Interest on delayed payment of duty in special cases  

 

28AB. (1) Where any duty has not been levied or has been short levied or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts the person who is liable to pay the duty as determined under sub-section (2) of section 28 shall in addition to the duty be liable to pay interest at such rate not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Board from the first day of the month succeeding the month in which the duty ought to have been paid under this Act but for the provisions contained in sub-section (2) of section 28 till the date of payment of such duty.

 

(2) For the removal of doubts it is hereby declared that the provisions of sub-section (1) shall not apply to cases where the duty became payable before the date on which the Finance (No. 2) Bill 1996 receives the assent of President.

 

Explanation 1 : Where the duty determined to be payable is reduced by the Commissioner (Appeals) the Appellate Tribunal or as the case may be the court the interest shall be payable on such reduced amount of duty.

 

Explanation 2 : Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals) the Appellate Tribunal or as the case may be the court the interest shall be payable on such increased or further increased amount of duty.

 

28B. Duties collected from the buyer to be deposited with the Central Government  

 

28B. (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the regulations made thereunder every person who has collected any amount from the buyer of any goods in any manner as representing duty of customs shall forthwith pay the amount so collected to the credit of the Central Government.

 

(2) The amount paid to the credit of the Central Government under sub-section (1) shall be adjusted against the duty payable by the person on finalisation of assessment and where any surplus is left after such adjustment the amount of such surplus shall either be credited to the Fund or as the case may be refunded to the person who has borne the incidence of such amount in accordance with the provisions of section 27 and the application under that section in such cases shall be made before the expiry of six months from the date of the public notice to be issued by the Assistant Commissioner of Customs.

 

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