Central Government vide Notification No. 113/2016-Customs (N.T.), Dated: August 22, 2016 has rescinded The Customs (Provisional Duty Assessment) Regulations 2011 as Section 18 of the Customs Act, 1962 itself defines the cases where provisional assessment may be resorted and requires that:
a) the importer binds himself for the payment of deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed; and
b) furnishes such security as the proper officer deems fit for the payment of the deficiency.
Herein the amount of security is at the will of the proper officer which may be different in different cases. Thus to maintain uniformity of practice, transparency and predictability for the tax payer, the Central Government vide Circular No. 38/2016-Customs, Dated: August 22, 2016 has provided that wherever, duty is to be assessed provisionally, the importer shall:
a) for the purposes of undertaking to pay on demand the deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed, execute a bond in the prescribed form; and
b) furnish such “Amount of Bank Guarantee or Cash deposit to be obtained as “security” of the differential duty” for the payment of the duty deficiency, prescribed as per his class.
It has further been reiterated that the amount of security will be determined on the basis of duty differential and not the CIF value of goods. Also provisional assessments under section 18 will be carried out with respect to cases only where the duty is in dispute.
F.No: 465/01/2016–Cus V
Govt. of India
Ministry of Finance
Dept. of Revenue
Central Board of Excise & Customs
Circular No. 38/2016-Customs
Dated 22nd August 2016
To,
All Principal Chief Commissioners of Customs / Customs & Central Excise
All Chief Commissioners of Customs,
All Chief Commissioners of Customs & Central Excise,
All Directorate-Generals, Chief Departmental Representative,
All Principal Commissioners of Customs,
All Principal Commissioners of Customs & Central Excise,
All Commissioners of Customs,
All Commissioners of Customs & Central & Excise
Subject:-Guidelines regarding Provisional Assessment under section 18 of the Customs Act, 1962
The Customs (Provisional Duty Assessment) Regulations 2011 issued under notification no. 81/2011 – Customs (NT) dated 25.11.2011 were reviewed in view of references from the field formations regarding guidelines on the implementation of Regulation 2(2) and Regulation 4.
2. Regulations 2(2), 3 and 4 require three elements – namely, (a) deposit of 20% of the differential duty between “provisional duty” and duty to be “finally assessed or re-assessed”; (b) execution of a bond; and (c) surety or security or both, as deemed fit,
2.1 Section 18 of the Customs Act, 1962 defines the cases where provisional assessment may be resorted, as under:
– (1) Notwithstanding 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 imported 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 officer deems it necessary to make further enquiry; or
(d) where necessary documents have not been produced or information has not been furnished and the proper officer deems it necessary to make further enquiry,
2.2 Further, Section 18 goes on to state how a provisional assessment is to be carried out:
“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 and the duty provisionally assessed.”
2.3 Thus, the provisions of section 18 of the Customs Act, 1962, require that in cases where goods are to be provisionally assessed:
(a) the importer binds himself for the payment of deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed; and
(b) furnishes such security as the proper officer deems fit for the payment of the deficiency.
2.4 In view of the requirement that the importer binds himself to pay the deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed, it would be necessary to obtain a bond for meeting the aforesaid condition.
2.5 Insofar as the requirement of obtaining a 20% deposit of the duty provisionally assessed, the Board has decided that this condition be dispensed, particularly, as it necessitates following the procedure of refunds in cases where final assessment is in favour of the importer. Such requirements add to the transaction costs, lead to delays in clearance and detract from the ease of doing business.
2.6 It was also noted that Regulation 4 required that the importer should furnish such surety or security or both, as deemed fit, along with the Bond. In this connection, it was felt that acceptance of a surety requires making an evaluation of the underlying asset value or of the net worth of the person executing the same. This poses difficulties to the importers as well as administrative challenges to the Department in valuing sureties. Therefore, the Board has decided that the requirement of security needs to be met by either obtaining a bank guarantee or a cash deposit, as convenient to the importer, and that no sureties shall be obtained.
2.7 In view of the aforesaid, the Board has rescinded The Customs (Provisional Duty Assessment) Regulations 2011″ vide notification no. 113/2016 — Cus (NT) dated 22nd August 2016 since section 18 itself lays down the procedure to be followed in the case of provisional assessment. The only issue which is required to be addressed is regarding the amount of security since section 18 requires the same to be obtained as “deemed fit” by the proper officer, For the sake of uniformity of practice, transparency and predictability for the tax payer, the Board has decided that the following procedure and guidelines will be followed by all Customs stations while assessing goods provisionally:
2.8 Wherever, duty is to be assessed provisionally, the importer shall:
(a) for the purposes of undertaking to pay on demand the deficiency, if any, between the duty as may be finally assessed and the duty provisionally assessed, execute a bond in the prescribed form (enclosed); and
(b) furnish such security for the payment of the duty deficiency, as indicated in para 3 below.
2.9 The security to be obtained shall be in the form of a bank guarantee or a cash deposit, as convenient to the importer.
