TMI Blog2016 (6) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for a proper speaking order, the appellant has to approach the Commissioner. We also fail to understand how that kind of interpretation to be encouraged to defeat the object of the statute and also encourage dereliction of duty. When the provision uses the word 'shall' in the sub-section (5) of section 17, it cannot be read as directory provisions but shall be construed to be mandatory provisions requiring Public Officer to discharge his public duty publicly. It may be appreciated that Court are not powerless to make a litigant remediless. - When public officer is required to discharge his public duty, it is mandatory for him to do so without a reminder by public for to discharge such duty. In view of the appellant's protest which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try in terms of Section17 (5) of Customs Act, 1962. But that authority failed to do so. In order to overcome the time bar, refund application for the above stated amount was filed. Thus appellant simultaneously proceeded to file refund application as well as an application before the Assistant Commissioner, Nagapattinam, to consider its grievance under Section 149 read with Section 17 (5) of the Customs Act, 1962. 2. Appellant says that the goods were warehoused in terms of third proviso to Section 14 (1) of the Customs Act, 1962. Therefore, duty liability should have been calculated with reference to rate of exchange as in force on the date on which the Bill of Entry is presented under Section 46 of the Customs Act, 1962. When statute i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, it could have filed appeal against the Bill of Entry. But that was not done. Grievance of both sides rests on the point as to whether cause of action arose for refund. The cause of action in the present case arose when the Bill of Entry was filed and that was so filed under Section 46 of the Customs Act, 1962. Thereafter, for clearance of the goods from customs custody against bond, Bill of entry was filed under Section 68 of the Customs Act, 1962. At this juncture, third proviso to Section 14 (1) of the Act was applicable. The spirit of that section is that appropriate rate of exchange shall apply in respect of the value of the goods and clearances made accordingly. The section in so far as that is relevant for the present purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section : Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. 5. Appellant obtained clearance of the goods without noticing application of inappropriate rate of exchange to value of the goods. When it came to the knowledge of the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the day that decides whether parties to the order are aggrieved. In the present case there is no reason stated by Customs to grant any remedy to the appellant against its grievance of inappropriate application of exchange rate. 8. It may be appreciated that Court are not powerless to make a litigant remediless. When public officer is required to discharge his public duty, it is mandatory for him to do so without a reminder by public for to discharge such duty. This being elementary principle of jurisprudence, the contentions of the ld. DR is liable to be discarded. Added to this, we have also noticed that a letter dated 16.04.2014 of the appellant (copy of which was filed in the course of hearing today) reminds the authority to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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