2023 (3) TMI 753 - AT - Customs

Levy of of additional duty - seeking a direction to the Assistant Commissioner to refund the excess duty collected - rejection of appeals on the ground that the duty was not paid under protest nor the Bills of Entry have been assessed provisionally - HELD THAT:- During the relevant time, after an importer files a Bill of Entry (BE) under section 46 of the Customs Act, 1962 (Act) for the goods imported by him, it shall as per section 17(1) be examined and tested by the proper officer. As per 17(2) after such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed by him. While as far as the description of the goods, quantity, value etc. are concerned, the importer is bound to state the truth in the BE, it is left to the proper officer to assess the goods to duty. Assessment means determination of the tax liability. While an importer can make a claim for exemption under any notification he feels is applicable to his goods, it is left to the proper officer to examine that claim, accept or reject it or to assess the goods to duty based on a provision not factored by the importer in the BE. In case the proper officer does not agree with the claim for exemption made by the importer or he seeks to impose duty not factored in the BE filed by the importer, he can resort to finalizing the assessment as provided for in section 17(5) of the Act.

This being so it was for the Learned Commissioner ((Appeals) to examine whether the provisions of the said section had been satisfied. When he had found that the appellant was directed by the original authority to take steps for assessing the goods under Notification No.49/2008-CE(NT) dated 24.12.2008, he should also have examined whether there was a written acceptance of that direction by the appellant/ importer, in the absence of which the proper officer should have passed a speaking order within fifteen days of the date of assessment of the BE - Without a written acceptance it could not have been concluded by the Learned Commissioner (Appeals), that since the appellants have cleared the goods on payment of duty as suggested by the proper officer, they have accepted the assessment of the BE.

Matters remanded back to the original authority to pass a speaking order as contemplated under section 17(5) of the Customs Act, 1962.