TMI Blog2021 (10) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied with utmost rigour in fiscal law Statutes by following ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [ 1984 (11) TMI 63 - SUPREME COURT] case. It is necessary to record that the learned counsel for writ petitioner submitted that provisional assessment and re-export may please be permitted and writ petitioner is willing to provide 100% security by way of bank guarantee. It is open to writ petitioner to make this plea before third respondent, if the writ petitioner chooses to do so and the third respondent shall consider the same on its own merits and in accordance with law - Impugned speaking orders are set aside solely on the ground that personal hearing has not been granted to the importers/writ petitioners though importers/writ petitioners have sought for one qua re-assesment. Petition disposed off. - W.P.Nos.14776, 14779, 18513 and 18517 of 2021 And W.M.P.Nos.15662, 15663, 15664, 15665, 19748, 19749, 19750, 19752, 19753 and 19754 of 2021 - - - Dated:- 28-9-2021 - Hon'ble Mr.Justice M.Sundar For the Petitioner in all WPs : Mr.Hari Radhakrishnan For the Respondents in all WPs : Ms.K.G.Usha Rani J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferencing platform. In support of his contention, learned counsel pressed into service a circular being circular No.55/2020-Cus., dated 17.12.2020 issued by 'Central Board of Indirect Taxes and Customs' [hereinafter 'CBIT C' for the sake of convenience and clarity]. It may not be necessary to extract and reproduce the entire circular and it will suffice to reproduce paragraph No.2(a) of the circular which reads as follows: '2. After a series of consultations with various stakeholders, such as the NACs, trade and industry associations, it is felt that there is a need to further enhance the efficiency of the process involved in Faceless Assessment. With a view to achieve this objective, certain key areas, which require immediate attention, have been identified and the following instructions/guidelines are being hereby issued so as to smoothen the process of Faceless Assessment by the field formations. (a) Re-assessment in accordance with the Principles of Natural Justice: Despite several Board instructions on the issue, it has been observed that many a times the importers are not being afforded an opportunity of being heard before reassessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer does not accept the change in assessment in writing, through the query module in ICES, the proper officer shall mandatorily issue a speaking order without delay and in accordance with sub-section (5) of Section 17 of Customs Act, 1962.' 6. Learned counsel drew the attention of this Court to clauses (iii) and (iv) of 2(a) of the aforementioned circular, read the same in the context of 2(a) which is in the nature of prelude and submitted that personal hearing in case of reassessment is imperative. 7. In response to the above, learned Revenue counsel drew the attention of this Court to an earlier circular being circular No.9/2020- Cus., dated 05.06.2020 and more particularly, paragraph No.5.4 thereat which says that in Faceless Assessment Group (FAG), an opportunity to be heard is to be given to an importer before proceeding with reassessment only, if personal hearing is sought by importer. Paragraph No.5.4 of the aforementioned circular captioned 'Speaking Order' reads as follows: '5.4 Speaking Order: (i) For any re-assessment done by the Faceless Assessment Group, which is at variance with the self-assessment done by the importer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o writ petitioner by way of statutory appeal under Section 128 of said Act. Exceptions have been carved out by Hon'ble Supreme Court in Commercial Steel Limited case [ Civil Appeal No 5121 of 2021, The Assistant Commissioner of State Tax and Others Vs. M/s Commercial Steel Limited] rendered recently on 03.09.2021. Law in this regard i.e., law regarding exceptions has been captured in paragraph No.11 which reads as follows: '11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.' 11. This will fall under paragraph No.11(ii) of Commercial Steel case law, as it would be violation of principles of natural justice which is ingrained in reasse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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