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M/s. Shree Luxmi Steels Versus Commissioner of Customs (Port) , Kolkata

2017 (10) TMI 572 - CESTAT KOLKATA

Non-speaking order - reassessment of Bills of Entry - Valuation of imported goods - defective tinplates - misprinted sheets - section 17(5) of the Customs Act, 1962 - Held that: - the Assessing Officer had done re-assessment, but no speaking order on the re-assessment was issued within 15 days from the date of re-assessment of the Bill of Entry. In such situation, the Hon’ble Calcutta High Court in the case of Sigma Power Products (P) Ltd. v. The Commissioner of Customs(Port) and Others [2017 (3 .....

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t should have filed the appeal after obtaining the speaking order against the Bills of Entry under the provisions of the Customs Act, 1962. - The assessing officer would pass the speaking order as required under section 17(5) of the Customs Act, 1962 forthwith and thereafter the appellant is at liberty to challenge the re-assessment made by the assessing officer in the Bills of Entry - appeal allowed - decided in favor of appellant. - Appeal Nos. C/76013-76049/17 - Order No. FO/A/77469-7750 .....

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t passed a speaking order on the reassessment within the stipulated period under the provisions of Section 17(5) of the Customs Act, 1962. The appellant filed appeals before the Commissioner(Appeals) against the Bills of Entry. By the impugned order, the Commissioner(Appeals) rejected the appeals as time barred. 2. Heard both sides and perused the appeal records. 3. The ld.Counsel for the appellant submitted that the Commissioner(Appeals) failed to appreciate that the appellant had not received .....

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By virtue of section 17(1) of the Act, 1962, an importer shall self-assess the duty, if any, leviable on such goods. Sub-section (4) of section 17 had empowered the proper Customs Officer to reassess the duty leviable on such goods. Section 17(5) provides that where any re-assessment done is contrary to the self-assessment, the proper officer shall pass a speaking order on the re-assessment, within 15 days from the date of re-assessment of the Bill of Entry, against which an appeal lies before .....

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t order as the proper officer had not passed a speaking order on the re-assessment within 15 days of the re-assessment of the Bills of Entry. 7. The Hon ble Karnataka High Court in the case of Woodstruck Furniture Pvt.Ltd. v. Union of India [2011 (269) E.L.T. 327 (Kar.)] observed that appeal lies from assessment order even if it is not a speaking order, cannot be a reason to depart from procedure prescribed in section 17(5) of the Act, 1962. The relevant portion of the said decision is reproduce .....

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ocedure prescribed in Section 17(5) can be departed from only in a case where the importer or the exporter, as the case may be, confirms in writing his acceptance of the assessment made by the assessing officer. Section 17(5) was introduced with effect from 13-7-2006, the date on which Act 29 of 2006 came into force. The decision relied on by the learned standing counsel appearing for the respondents was delivered on 31-3-2006, prior to the introduction of Section 17(5) of the Act. In view of th .....

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15 days has expired. Under Section 128 of the Act an appeal lies from the order of assessment made by the 3rd respondent to the Commissioner (Appeals). The period of limitation prescribed for filing the appeal is 60 days from the date of communication of the order. The Commissioner (Appeals) is also empowered to condone the delay in filing the appeal subject to the condition that the delay does not exceed the period of 30 days. In the instant case no speaking order in terms of Section 17(5) of .....

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principle of natural justice should be followed and a speaking order be passed when Bills of Entry are finally assessed differently from that as claimed by the importer. The relevant portion of the said decision is reproduced below:- 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 201 .....

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l assessment of the bill of entry, a speaking order will be issued. In this case, there is a mere endorsement of variation on the said bill of entry and no reasons which led to the enhancement of the value have been disclosed. In the absence of reasons being mentioned on the said bills of entry itself or by issue of a separate communication containing the reasons for the same an importer would be at loss to the manner in which the same could be challenged. In fact, in such cases an appeal to the .....

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issued to the importer that an efficacious appeal can be made to the Commissioner of Customs (Appeals) under Section 128 of the Act. The petitioners have correctly relied upon the decision of the Kerala High Court in HDFC Bank Ltd. v. Union of India - 2011 (271) E.L.T. 175 wherein it has been held that where an assessee objects to the assessment being made contrary to its claim, the Assessing Officer is obliged to issue a speaking order in terms of Section 17(5) of the Act. The Court held that .....

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ion of justice. These principles are not only applicable to administrative or executive actions but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements . Further it quotes from H.W.R. Wade s book Administrative Law, 7th Edition, as under :- A right to reasons is therefore, an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man s .....

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the assessment against their claim, the appropriate authority is duty bound to pass a speaking order. Admittedly the 3rd respondent has not done that. After not having performed their statutory duty, the 3rd respondent cannot be heard to contend that because the petitioner has not filed any appeal against the Bill of Entry itself, they cannot now claim for a speaking order for filing an appeal. The decision of the Tribunal referred to by the Assistant Solicitor General is also of no use in this .....

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e Bill of Entry itself the petitioner has registered against such assessment which was followed by Ext. P4. Therefore, the petitioner was perfectly justified in finding for speaking order without which the petitioner cannot know the reasons for the assessment made by the 3rd respondent. In fact the limitation for filing appeal under Section 128 would start only from the date of communication of the decision or order to the petitioner. Clearly Bill of Entry is not a decision or order contemplated .....

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