9911796707
TMI Blog2014 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... he bills of entry as filed by the petitioners. 3) The issues arising for our consideration in the present petition are: (I) Whether an endorsement made on the bills of entry on finalization of a provisionally assessed bills of entry on a basis different from that claimed by the importer would require the following the principles of natural justice and including a speaking order justifying the variation made on the bills of entry? and (II) Whether a speaking order justifying the variation made on the bills of entry at the time of its finalization to the prejudice to the importer is a sine qua non to enable a filing of an appeal under the Customs Act, 1962 (" the Act")? 4) The petitioners had during the period 2006 to 2008 imported Muriate of Potash (MOP). The import of MOP by the petitioners during the above period was under two bills of entry dated 29 November 2006 while one each dated 25 October 2007, 7 December 2007 and 16 April 2008 (said Bills of entry) declaring its value and claiming benefit of certain exemption Notifications. However, as the petitioner was unable to submit documents in original to support its imports, the said bills of entry were provisionally assessed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the said bills of entry have been finalized in breach of principle of natural justice. The assessable value declared by the petitioner of the MOP on the said bills of entry has been enhanced and the claim for exemption notification was also denied without indicating the reasons for the same and hearing the petitioners thereon. Therefore, the assessment order passed on the said bills of entry by mere endorsement be set aside and the respondents be directed to finalize the said Bills of entry after following the principles of natural justice; and b) A mere endorsement on the said Bills of entry, finalizing the assessment to the prejudice of an assessee is not an appealable order. It is only when a speaking order is issued in respect of said bills of entry as finalized, would the assessment on the bills of entry became appealable. Therefore, in the absence of a speaking order, the petitioner is unable to avail of its remedy of appeal. This requirement of a speaking order is found in Section 17(5) of the Act. In the circumstances, it is obligation of the Assessing Officer to issue a speaking order in support of its finalization of Bills of entry when the same is done to the prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same had been submitted and sought finalization of the bills of entry. Thereafter instead of initiating the process of finalization of the Bills of entry involving the petitioner, the respondent finalized the said Bills of entry exparte in December 2010 to the prejudice of the petitioner. This was informed to the petitioner in May 2011. It is also undisputed that no personal hearing was granted to the petitioner nor was the petitioner informed about the reasons for the variation being made to said Bills of entry as filed by the petitioner before making the same. It is also undisputed that no speaking order in support of the finalized bills of entry which has been varied has been issued to the petitioner till date. 13) The contention of the revenue is that the Act does not require finalization of bill of entry which was originally provisionally assessed should be preceded by following the principle of natural justice. However, even if the statute does not specifically provide that the bills of entry being finalized should be preceded by issue of notice, grant of personal hearing and a speaking order in case the contention of the importer is not accepted, yet the principles of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accept it. However, in the absence of reasons, the party does not know why its contention /explanation was not acceptable. This alone prevents the authority from exercising unbridled powers in arbitrary manner while finalizing the Bills of entry arbitrarily. Therefore, we hold that the assessment of the said bills of entry are in breach of natural justice and bad in law. 14) The contention of the revenue that this Court should not entertain this petition as an alternative remedy of an appeal is available under Section 128 of the Act and the petitioner has chosen not to avail it. The said bills of entry were finalized in December 2011. The petitioner was informed of the same in May 2012. The petitioner accepted it as is evident from not having filed an appeal to the Commissioner of Customs (Appeal) or any other authority. An Appeal under Section 128 of the Act to be an efficacious appeal must be from an order with reasons. It is for this reason that Section 17(5) of the Act itself provides that on a bill of entry being assessed finally in a manner contrary to the claim of the importer, then within 15 days of making the final assessment of the bill of entry, a speaking order will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice... Reasoned decisions are not only vital for the purposes of showing the citizen that he is receiving justice they are also a valuable discipline for the tribunal itself.." 15) The objection of the revenue to invocation of Section 17(5) of the Act is that in this case the assessment was made provisional under Section 18(1) of the Act and were also being finalized under Section 18(2) of the Act. Therefore, it is submitted that Section 17(5) of the Act requiring an issuance of a speaking order will not apply. According to us any quasi judicial decision which could be subject matter of appeal would require reasons to be given. However, in this case in any view of the matter Section 18(2) of the Act at the relevant time read as "when the duty leviable on such goods is assessed finally in accordance with the Act then" certain consequences on finalization of assessment are set out. However, the final assessment of the goods which have been provisionally assessed has to be in terms of Section 17 of the Act. This is so 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
