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2017 (3) TMI 497 - CALCUTTA HIGH COURT

2017 (3) TMI 497 - CALCUTTA HIGH COURT - TMI - Validity of reassessment - Classification of imported goods - solar re-chargeable emergency lights - appellant claim that proper officer of the Customs did not pass a speaking order on the re-assessment within fifteen days from the date of re-assessment of the bills of entry. The mandate in subsection (5) of section 17 of the CA, 1962 was not fulfilled and hence the re-assessment ought to have been set aside - Held that: - The order made by the prop .....

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o set aside the re-assessment - petition allowed - decided in favor of petitioner. - G.A No. 298 of 2016, A.P.O.T No. 31 of 2016 - Dated:- 8-3-2017 - Aniruddha Bose And Arindam Sinha, JJ. Mr. S.K. Mehta, Adv. for the Appellant Mr. Amitabrato Roy, Adv. for the Revenue ORDER Arindam Sinha, J. The application and appeal were taken up for hearing together, the formalities being dispensed with. The appellant imported four consignments of solar re-chargeable emergency lights which according to it are .....

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dismissed, without calling for affidavits, on the reasons given in the impugned order as are reproduced below: In the instant case, however, it is noticed that the petitioner s initial self-assessed bills of entry were verified by a proper officer and at the time of verification a query was raised by the proper officer to the petitioner to please explain the goods . In response, the petitioner requested for 1st check . Consequently the proper officer noted change in classification of the importe .....

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and thus allowed the proper officer to reclassify the imported goods under a different classification head, which does not amount to reassessment. That apart and in any event, the petitioner accepted the reclassification of the imported goods without any demur or protest between October, 2014 and February, 2015 and thereafter cannot approach this Court by filing the writ petition in the month of July, 2015, seeking a mandatory order directing the proper officer to pass a speaking order, which wa .....

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ms Act, 1962 was not fulfilled and hence the re-assessment ought to have been set aside and quashed by the writ court. He submitted, the fact that his client had asked for first check was of no consequence. The bills of entry were self assessed as required by section 17 of the said Act. First check was possible under the provisions of section 18 of the said Act. The writ court had erred in holding that when his client had requested for first check it allowed the proper officer to re-classify the .....

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case Kothari Metals Ltd. Vs. Union of India reported in 2011 (274) E.L.T 488 (Cal.), which though rendered in the context of sub-section(5) of section 17 prior to its amendment but, he submitted, was applicable to this case. Paragraphs 15 to 17 therefrom are reproduced below:- 15. On a plain reading of the aforesaid sub-section, it appears that a duty is cast upon the proper officer to pass a speaking order within 15 days from the date of assessment of the bill of entry or the shipping bill, exc .....

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rity on the 15th day from 12th December, 2007. 17. Thus, the Assistant Commissioner of Customs refused to exercise jurisdiction vested in him by law by not passing any speaking order in terms of sub-section(5) of section 17 of the Act and so long that order was not passed, no question of acceptance of the order of assessment arose. Mr. Roy, learned advocate appeared on behalf of Customs and submitted that the impugned order carried good reasons for dismissing the writ petition of the appellant a .....

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provides that an importer shall self-assess the duty leviable on goods. Section 18 provides for a situation where the importer is unable to make selfassessment under sub-section (1) of section 17. The said section further provides that in such a case the proper officer may direct that the duty leviable on such goods be assessed provisionally. Section 46 deals with entry of goods on importation. From the clauses of the Customs Manual, referred to by the appellant, it can be seen that first check .....

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eck on query being raised by the proper officer in respect of the goods sought to be imported. The appellant importer having thus signified lack of information about the goods sought to be imported caused an examination of the goods. On such examination the classification under Customs Tariff Heading was made by the proper officer. Pursuant to such classification made the appellant paid the duty applicable thereto and got released the goods. The appellant did not prefer an appeal against such as .....

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missioner of Customs, Port, Kolkata. The appellant declined to file affidavit-in-reply. In that affidavit, in para (3)(c)(I), inter alia, the following was said:- 3(c)(i).It is submitted that importer has not raised any dispute either as to change in classification nor to value enhancement and therefore, the Bill of Entry in itself is an order of assessment under section 17(5) of the Customs Act, 1962…………… Mr. Mehta relied upon the submission on the part of the .....

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