Home Case Index All Cases Customs Customs + AT Customs - 2019 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1287 - CESTAT CHENNAIIssuance of speaking order in terms of Section 17 (5) of the Customs Act, 1962 - relevant date for appeal in terms of Section 128 of Customs Act, 1962, in the absence of speaking order - Classification of imported goods - inactive dried yeast– animal feed supplement - to be classified under CTH 23099020 or under CTH 21022000? - duty was paid under protest - provisional assessment was made but order under Section 17 (5) of Customs Act, 1962 was not issued - time limitation. Issuance of Speaking Order - Whether in the facts and circumstances of the case, the lower adjudicating authority was required to issue a speaking order in terms of Section 17 (5) of the Customs Act, 1962? - HELD THAT:- In terms of Section 17 (5) where any reassessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Relevant date for appeal - In the absence of such speaking order what could be the relevant date for appeal in terms of Section 128 of Customs Act, 1962? - HELD THAT:- It is crystal clear that in cases where the reassessment is done contrary to the assessment done by the importer and where the assessee does not accept such reassessment in writing, the proper officer shall pass a speaking order under reassessment; in the instant case, the appellants have claimed classification under CTH 23099090 whereas the department has assessed under CTH 21022000; therefore, it is evident that the assessment has been done contrary to the claim of the appellant; the appellants have registered protest also; it is not the case of the department that the appellants have accepted the reassessment in writing; therefore, in terms of Section 17 (5) of Customs Act, 1962, the department was under obligation to issue a speaking order. To this extent, we find that the appellant‟s submissions are sustainable - the provision of Section 128 (1) themselves take care and by virtue of the provisions, the mere finalization of a Bill of Entry itself becomes an order or communication of the order. Therefore, the appeals are required to be filed in such circumstances within a time period from the date of such reassessment / finalization. Classification of Enzymes imported by the appellant - What is the correct classification of the impugned goods whether under Chapter 21 as contended by the department or under Chapter 23 as contended by the appellant? - HELD THAT:- CTH 2102 covers yeasts (active or inactive); other single cell micro organisms, dead (but not including vaccines of Heading 3002); prepared baking powders and under 8 digit heading 21022000 inactive yeasts, other single-cell micro-organisms dead - Going by the test reports of CRCL, impugned goods are inactive yeast; in view of the explanatory notes to chapter 21 dried yeast is also known as inactive yeast and for that reason inactive yeast is to be considered as dried yeast. It is clear that the entire heading 2309 talks of preparations of a kind used in animal feeding. By no stretch of imagination the impugned products imported by the appellants are preparations of a kind animal feeding. At the best, they may be used for preparation of animal feeds that is to say that they are raw material used for preparation of animal feed. Therefore, they cannot be classified along with animal feed merely by virtue of the inclusive definition given in the explanatory notes for the heading 2309 CETA. Thus, classification of impugned goods i.e. yeast is correctly arrived by the Revenue under CTH 21022000. The appellant‟s submissions on the issue of time bar loose relevance in the instant case - to extent of classification of the impugned goods is concerned; the order of the Ld. Commissioner (Appeals) does not require to be interfered with - Appeal dismissed - decided against appellant.
|