TMI Blog2014 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... as Section 18(2) of the Act itself does not provide for finalization of assessment but merely states the action to be taken by the Assessing Officer consequent to the finalization of provisionally assessed bill of entry under Section 17 of the Act. Thus the objection of the revenue is unsustainable. - matter remanded back from fresh decision. - Civil Writ Petition No. 11794 of 2013 - - - Dated:- 21-1-2014 - Mohit S. Shah, C.J. And M. S. Sanklecha,JJ. For the Petitioners : Mr. D. B. Shroff, Sr. Advocate i/by Chitnis Co. For the Respondent : Mr. Pradeep S. Jetly with Ms. Suchitra Kamble JUDGMENT (Per M. S. Sanklecha, J.): Rule, returnable forthwith. By consent of the parties the petition is taken up for final hearing. 2) By this petition under Article 226 of the Constitution of India the petitioners are challenging demand notices dated 21 April 2011, 2 May 2011, 5 May 2011 and 18 November 2013 for an aggregate amount of Rs.17.51 crores. The above demand is made consequent to finalization of assessment of five Bills of Entry, two dated 29 November 2006 while others are dated 27 October 2007, 7 December 2007 and 16 April, 2008. All the above five bills of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest thereon. 7) In response the petitioners by three letters all dated 25 May 2011, called upon the Assistant Commissioner of Customs to withdraw the demand notices as they objected to the finalization of the said bills of entry. Thereafter there was no movement on either side. 8) However, on 18 November 2013, the petitioners received a notice (further demand notice) from the Superintendent of Customs i.e. respondent No.4, inter alia, demanding an amount of Rs.17.51 crores payable consequent to the finalization of said bills of entry in respect of import of MOP during the period 2006 to 2008. The petitioners by their letter dated 19 November 2013 requested for a personal hearing. Consequent to the above on 4 December 2013, the petitioners' were orally informed by the Officers of Customs to pay the amount of Rs.17.51 crores, within one week. The Petitioner was also informed that on failure to pay the above dues, the respondentrevenue would initiate recovery proceedings in respect of the said bills of entry which were finalized way back in 2010. 9) It is in the above circumstances that the present petition has been filed. 10) Mr. D. B. Shroff, Senior Advocate appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion therein to issue show cause notice or grant a hearing before doing so. c) The said Bills of entry were finally assessed to duty under Section 18 of the Act and this assessment would by itself be a appealable order without the requirement of a speaking order. It was emphasized that the requirement of a speaking order is found only under Section 17(5) of the Act and it cannot be read into Section 18 of the Act under which the said Bills of entry were finally assessed to duty. Therefore, it was open to the petitioner to file an appeal from the said bills of entry on being finally assessed in 2010 without the requirement of a speaking order. This the petitioner failed to do and this is an attempt to reopen a closed issue. 12) We have considered the rival submissions. It is an undisputed position that the petitioner imported MOP under the said bills of entry during the period 2006 to 2008. The said Bills of entry were assessed provisionally to duty under Section 18 of the Act for the reason that the petitioner was required to submit certain documents in original in support of the import of MOP.. This the petitioners did in 2008 itself and sought finalization of the assessment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be assessed in accordance with the claim made by the importer or even if not accepted, the authority would be required to give reasons in support of its conclusion. This would undoubtedly curtail/reduce unwarranted litigation. The above process of natural justice is only in compliance with elementary principles of Rule of law. The above process may not be elaborate but must meet the essence of fair play so that no person is left with a feeling of being a target of arbitrary and unfair behavior on the part of the authorities. In this case, the revenue does not dispute that while finalizing the assessment of the said bills of entry, value of imported MOP has been enhanced and the benefit of notification as claimed was not extended without giving any opportunity to the petitioner to explain away the view of the Assessing Officer. In this case the finalization of the said Bills of entry was done merely by making an endorsement on them without disclosing the reasons which led to enhancement of the value of MOP from that declared by the petitioners leading to differential duty being payable. Moreover even after having finalized the said Bills of entry there is no communication from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Commissioner of Customs (Appeals) under Section 128 of the Act. The petitioners have correctly relied upon the decision of the Kerala High Court in HDFC Bank Ltd. Vs. Union of India 2011 (271) ELT 175 wherein it has been held that where an assessee objects to the assessment being made contrary to its claim, the Assessing Officer is obliged to issue a speaking order in terms of Section 17(5) of the Act. The Court held that it is only on passing of a speaking order that the period for filing an appeal under Section 128 of the Act commences. As the Apex Court in Asstt. Commissioner Commercial Tax Department vs. Shukla Brothers Bombay 254 ELT 16 has observed that Reasons are the soul of orders. Non recording of reasons could lead to duel infirmities, firstly, it may cause prejudice to the affected party and secondly more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements . Further it quotes from H.W.R. Wade's book Administrative Law, 7th Edition, as under: A right to reasons i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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