TMI Blog2017 (6) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ". - In respect of all BEs, save and except BE No.2968893 dated 19.10.2015, the petitioner had paid duty under protest, which has been registered with the concerned authority. As a matter of fact, each of the letters of protest, which is on record, bears a stamp, to that effect. Only if, the petitioner's assessment was doubted, verification, examination or testing of goods would have taken place and thereafter, perhaps, led to reassessment of duty. The respondents, thus, took the stand that, it is only when re-assessment of duty is carried out under sub-section (4) of Section 17 of the Act, and, it is contrary to self-assessment carried out by an importer or an exporter (as the case may be), with respect to valuation of goods, classification, exemption or concession of duty availed consequent to any notification that an obligation is cast on the respondents to pass a speaking order, under sub-section (5) of Section 17 of the Act within the defined period. Whether there was a duty cast on the "proper officer" to verify, examine or test the subject goods, in view of the protest registered by the petitioner? - Held that: - under sub-section (2) of Section 17 of the amended pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of fact, in so far as one of the BEs is concerned, i.e., BE No.2968893, dated 19.10.2015, respondent No.2 has already asked respondent No.3 to have the subject goods tested. 4.1 Though, the test report has not been supplied, it appears that, the petitioner has gained access to the report by triggering the provisions on the Right to Information Act, possibly via a third party. I would be referring to this aspect of the matter in the course of my narration. 5. Briefly, the facts and circumstances, which have led to the institution of the present petition, are as follows: 5.1. The petitioner, which is in the business of import and distribution of Telecommunication and IT Accessories, had imported products, known as, Ethernet Switches. 5.2. It is the petitioner's case that these Ethernet Switches are, essentially, used to connect personal computers, laptops and printers, within the defined area, such as an enterprise campus/building. 5.3. The petitioner, it appears, had been importing the Ethernet Switches over a period of time and claiming exemption from customs duty under notification No.24/2005 dated 01.03.2005. 6. Evidently, on 11.07.2014, the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eginning of my narration, respondent No.2 directed respondent No.3 to have the Ethernet Switches imported by the petitioner tested, so as to ascertain, whether or not, they are Carrier Ethernet Switches. 9. The record also shows that apart from the letters of protest filed by the petitioner, at the time of clearance of the subject goods, the petitioner has been also repeatedly writing to respondent No.2 to pass speaking orders, in respect of the aforementioned BEs, and, accordingly, seeking to persuade him to vacate the protest registered with the Customs Authorities, to enable it, to take recourse to the appellate remedy, as provided under the Customs Act, 1962 (in short 'the Act'). 9.1 This stand of the petitioner is discernible upon perusal of the following communication: letter dated 15.10.2015, two (2) letters of even date, i.e.,19.10.2015, letter dated 10.2.2016 and finally, letter dated 11.3.2016. 9.2. It appears that, the attempt of the petitioner in having respondent No.2 to pass a speaking order has had no effect. 10. The only instance where there has been some movement is, with regard to, as indicated above, BE No.2968893 dated 19.10.2015, in which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment made via notification dated 11.07.2014, the fact, that a protest has been registered, has made it incumbent on the part of the respondents to pass a speaking order. 12.8 In support of his submissions, counsel for the petitioner relied upon, not only two orders of the Commissioner (Appeals) to demonstrate as to how they dealt with a like situation, but also, on the following judgments. For the sake of convenience, the orders of the Commissioner (Appeals) and the judgments relied upon are referred to hereafter: i) Order in Appeal passed by Commissioner (Appeals) in C.Cus.No.1152 1153/2013 dated 27.08.2013; ii) Order in Appeal passed by Commissioner (Appeals) in C.Cus.No.398 399/2014 dated 10.03.2014; iii) Sanjivani V. Union of India - 2015 (325) ELT 571 (All) iv) Karan Associates v. Commissioner of Customs (Import), Mumbai - 2009 (236) E.L.T. 23 (Bom) and v) HDFC Bank Limited V. Union of Inda - 2011 (271) ELT 175 (Ker.). 13. On the other hand, Mr.V.Sundareswaran submitted that the petitioner had imported Network Switches , which fall under customs tariff heading (CTH) 85176290. The subject goods were exempted from BCD, pursuant to the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not preferred, the petitioner cannot use the writ route to first obtain a speaking order and then, prefer an appeal, as is sought to be, clearly, attempted by the petitioner. 13.7. In support of his submissions, learned counsel for the respondents, relied upon the following judgments, which also include the judgments of the Central Excise and Service Taxes Appellate Tribunal (CESTAT): i) Escorts Limited V. Union of India - 97 ELT 211 (SC) ii) Commissioner of Customs V. ACE Designers - 329 ELT 109 (DB-Mad) iii) Redington India Ltd. V. CC - 212 ELT 187 (Mad) iv) Payal Petropack Pvt. Ltd. V. CC - 251 ELT 533 (Tri-Del) v) Max India Limited V. CC - 192 ELT 246 (Tri.Del) vi) CEAT V. CC - 335 ELT 693 (Tri-Bom) Reasons : 14. I have heard learned counsel for the parties and perused the record. 15. According to me, what clearly emerges is that, the petitioner has cleared goods via seven (7) BEs. In six (6) BEs, the goods are described as 'network switches', while in the seventh (7th) BE, i.e., BE No.2968893 dated 19.10.2015, the goods are described as Enterprise Ethernet Switch . 15.1. In respect of all BEs, save and except BE No.29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough any verification or examination or testing. 18.2. In other words, only if, the petitioner's assessment was doubted, verification, examination or testing of goods would have taken place and thereafter, perhaps, led to reassessment of duty. The respondents, thus, took the stand that, it is only when re-assessment of duty is carried out under sub-section (4) of Section 17 of the Act, and, it is contrary to self-assessment carried out by an importer or an exporter (as the case may be), with respect to valuation of goods, classification, exemption or concession of duty availed consequent to any notification that an obligation is cast on the respondents to pass a speaking order, under sub-section (5) of Section 17 of the Act within the defined period. 19. The question, therefore, which arises is: whether there was a duty cast on the proper officer to verify, examine or test the subject goods, in view of the protest registered by the petitioner. 19.1. For this purpose, one may have to bear the statute in mind, i.e. the provisions of Section 171, as it appeared prior to its amendment and thereafter, post amendment. 20. Prior to the amendment, sub-section (1) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 17 of the Act provides that where re-assessment is carried out under sub-section (4) of the very same Section, and, is found to be contrary to the self-assessment made or where re-assessment done, is not accepted, and this fact is conveyed, in writing by the importer or the exporter (as the case may be), the proper officer is duty bound to pass a speaking order, within 15 days from the date of reassessment of BE. 21.5. The amended Section 172 also includes sub-section (6), which provides that where re-assessent has not been done or a speaking order has not been passed on re-assessment, the proper officer may audit the assessment of duty of imported goods or exported goods (as the case may be), either at his office or the premises of the importer or the exporter, as may be expedient, in such manner, as may be prescribed. 21.6. The explanation only clarifies that where an Entry by the importer or exporter (as the case may be) has been made before the amendment, such imported or exported goods, shall continue to be governed by the unamended provisions of Section 17 of the Act. 22. Quite clearly, the amendment has been brought about to facilitate easy clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared the goods after executing a test bond. 26.2. In both set of cases, therefore, the proper officer took the view that duty was payable in respect of the goods cleared. This view was applied across all seven (7) BEs. 27. The submission of Mr.V.Sundareswaran that the petitioner should have filed an appeal after entering the BEs does not impress me, as without a speaking order, the appeal, if any, preferred before the concerned authority under Section 128 of the Act, would clearly be inefficacious. A non-speaking order would present the appellate authority with a situation akin to, in a manner speech, an inscrutable face of a sphinx . The Scheme of the Act does not exclude, to my mind, passing of a speaking order, where a BE is entered under the self-assessment process along with a protest letter at the time of payment of duty. It is only, when, no protest is lodged, could, one, perhaps, argue that no appeal would lie, as it would be a case of self-assessment without demur on the part of an importer or an exporter (as the case may be). However, much would depend on the facts and circumstances obtaining in a given case. A case in point is Aman Medical Products Limited V. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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