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2017 (6) TMI 1016 - HC - CustomsNon-speaking order - case of petitioner is that petitioner, essentially, uses the Ethernet Switches, which are, in effect, non-carrier Ethernet Switches or Enterprise Switches, within a defined area, such as, a campus or a building. The carrier Ethernet Switch, on the other hand, are used over a dispersed geographical areas. These are switches, which are used by service providers, such as BSNL, Airtel and Vodafone. The petitioner, therefore, clearly falls within the ambit of the exemption notification dated 01.03.2005 - whether or not, respondent Nos.1 and 2 are required to pass speaking orders, with respect to BEs, filed by the petitioner, at the time of seeking clearance of the subject goods? Held that: - the petitioner has cleared goods via seven (7) BEs. In six (6) BEs, the goods are described as 'network switches', while in the seventh (7th) BE, i.e., BE No.2968893 dated 19.10.2015, the goods are described as "Enterprise Ethernet Switch". - In respect of all BEs, save and except BE No.2968893 dated 19.10.2015, the petitioner had paid duty under protest, which has been registered with the concerned authority. As a matter of fact, each of the letters of protest, which is on record, bears a stamp, to that effect. Only if, the petitioner's assessment was doubted, verification, examination or testing of goods would have taken place and thereafter, perhaps, led to reassessment of duty. The respondents, thus, took the stand that, it is only when re-assessment of duty is carried out under sub-section (4) of Section 17 of the Act, and, it is contrary to self-assessment carried out by an importer or an exporter (as the case may be), with respect to valuation of goods, classification, exemption or concession of duty availed consequent to any notification that an obligation is cast on the respondents to pass a speaking order, under sub-section (5) of Section 17 of the Act within the defined period. Whether there was a duty cast on the "proper officer" to verify, examine or test the subject goods, in view of the protest registered by the petitioner? - Held that: - under sub-section (2) of Section 17 of the amended provision, it is incumbent on the part of the proper officer to verify the claim of the petitioner, in the light of the protest registered by him. In so far as BE No.2968893, dated 19.10.2015, was concerned, even though the BCD rate was mentioned as 'nil', the petitioner was not allowed to either clear the goods or, register a protest, in contrast to other BEs. The petitioner, in fact, paid duty at the very same rate and cleared the goods after executing a test bond - the proper officer took the view that duty was payable in respect of the goods cleared. This view was applied across all seven (7) BEs. The petitioner is right that the proper officer is duty bound to pass a speaking order in terms of sub-section (5) of Section 17 of the Act - petition allowed - decided in favor of petitioner.
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