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2016 (6) TMI 659 - CESTAT CHENNAI

2016 (6) TMI 659 - CESTAT CHENNAI - TMI - Improper calculation of the duty liability by Customs applying a wrong rate of exchange - inaction of customs Authority to dispose application filed by it under section 149 read with Section 17 (5) of Customs Act, 1962 - Held that:- It is noticed that appellant had not agreed to the assessment under Section 17 (2) in writing. This situation warranted application of Section 17 (5) of the Act. The authority should have passed a proper order as required by .....

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tory 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 is visible from the application stated above, the authority should rise .....

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2016 - Dated:- 13-6-2016 - SHRI D.N. PANDA, JUDICIAL MEMBER AND SHRI B. RAVICHANDRAN, TECHNICAL MEMBER For the Appellant : Shri Derrick Sam, Advocate For the Respondent : Shri K. Veerabhadra Reddy, JC (AR) ORDER Per: D.N. Panda Appellant was aggrieved by the improper calculation of the duty liability by Customs applying a wrong rate of exchange. Further, appellant was also aggrieved due to inaction of customs Authority to dispose application filed by it under section 149 read with Section 17 (5) .....

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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 ref .....

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nfirmation of assessment, in writing, by the appellant. The appellant has not at all given anything in writing agreeing to the reassessment. Rather, the appellant filed an application on 16.4.2014 under protest for exercise of power under Section 149 read with Section 17 (5) of Customs Act, 1962. Repelling the arguments of the appellant, Revenue says that if the appellant was aggrieved by the reassessment, it would have asked for a speaking order from the proper officer. In absence of such a rep .....

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inconceivable. 3. Heard both sides and perused the records. 4. When the appellant was aggrieved by the application of inappropriate exchange rate, 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 fr .....

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f the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the .....

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t and in the manner specified in the rules made in this behalf : Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer .....

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of inappropriate rate of exchange to value of the goods. When it came to the knowledge of the methodology followed by Customs, it came with an application on 16.04.2014 for an order under Section 17 (5) of the Customs Act, 1962. The first part of sub-section (5) deals with the cases of difference in valuation of goods, classification, exemption or concession of duty availed consequent to the Notification and the second part of the law deals with the cases other than the cases where the importer .....

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power as well as discharge public duty. 7. We are surprised to know how the ld. DR argues that 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 requi .....

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