TMI Blog2022 (7) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry which has been varied has been issued to the petitioner at any point of time. It is clear that the respondent authorities is required to pass a speaking order on the reassessment within 15 days from the date of re-assessment of the Bill of Entry read with sub-section (2) of section 18 of the Customs Act. Respondent-authorities therefore, ought to have granted opportunity of hearing to the petitioner and thereafter ought to have passed a speaking order as contemplated under section 17(5) of the Customs Act - the final assessment order dated 02.01.2019 passed by the respondent No.4 on the Bill of Entry No. 3415030 and consequent further notices calling upon the petitioner to pay the amount of differential duty with applicable rate of interest are also set aside are set aside - respondents are directed to pass a fresh order of final assessment/re-assessment of the Bill of Entry after giving opportunity of hearing to the petitioner by passing a speaking order - application disposed off. - R/SPECIAL CIVIL APPLICATION NO. 16200 of 2021 - - - Dated:- 11-7-2022 - HONOURABLE MR. JUSTICE N.V.ANJARIA And HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR. S S IYER(6553) FOR T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2021, granted time of 30 days as requested by the petitioner. The petitioner thereafter preferred this petition being aggrieved by the action of the respondent No.4 of ex parte final assessment of the Bill of Entry No. 3415030 dated 28.09.2017. 5. Learned advocate Mr. S.S.Iyer for the petitioner submitted that the petitioner was never informed by the respondent No.4 about the final assessment of the Bill of Entry, contrary to the provisions of sections 17 and 18 of the Customs Act. 5.1 It was submitted that respondent No.4 ought to have issued show-cause notice and ought to have granted personal hearing to the petitioner before final assessment of the Bill of Entry contrary to the self-assessment made by the petitioner-company during the provisional assessment in terms of section 18 read with section 17(5) of the Customs Act as explained in CBEC Circular No. 17 of 2011-Customs dated 08.04.2011. 5.2 Learned advocate Mr. Iyer referred to the provisions of sections 17 and 18 of the Customs Act and submitted that CBEC Circular No. 17 of 2011-Customs dated 08.04.2011 specifically provides that when the importer who has done self assessment and has opted for provisional asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Customs (Appeal) under section 128 of the Act. It was further held that as the Customs Department did not grant any personal hearing to the petitioner nor the petitioner was informed about the reasons for variation being made in the Bill of Entry by raising the demand on the ground on differential duty, such order is not tenable. 6. Per contra, learned advocate Utkarsh Sharma submitted that the reliance placed by the petitioner on the Circular No. 17 of 2011-Customs dated 08.04.2011 is not applicable in the facts of the case as the Bill of Entry dated 28.09.2017 was assessed under the provisions as it stood during the relevant time and there is no violation of the provision of section 17(5) and section 18 of the Customs Act. It was submitted that Bill of Entry No. 3415030 was legally assessed by following the provisions of law as stipulated under section 18 of the Customs Act as they stood during the relevant time. It was pointed out that the Customs (Finalization of Provisional Assessment) Regulation, 2018 was not in force and hence, Rule 6(3) of the said Rules is not applicable in the facts of the case as the Bill of Entry was ordered to be provisionally asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in original in support of the import of MOP. This the petitioners did in 2008 itself and sought finalization of the assessment in accordance with the claim made by the petitioner therein. However, the respondent revenue again sought the original documents in 2010. The petitioners replied to the same, pointing out that the same had been submitted and sought finalization of the bills of entry. Thereafter instead of initiating the process of finalization of the Bills of entry involving the petitioner, the respondent finalized the said Bills of entry ex parte in December 2010 to the prejudice of the petitioner. This was informed to the petitioner in May 2011. It is also undisputed that no personal hearing was granted to the petitioner nor was the petitioner informed about the reasons for the variation being made to said Bills of entry as filed by the petitioner before making the same. It is also undisputed that no speaking order in support of the finalized bills of entry which has been varied has been issued to the petitioner till date. 13) The contention of the revenue is that the Act does not require finalization of bill of entry which was originally provisionally assessed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s leading to differential duty being payable. Moreover even after having finalized the said Bills of entry there is no communication from the Assessing officer indicating the reasons for enhancing the duty payable on final assessment. In case reasons are given, it is likely that the petitioner/ importer may see merit in the same and accept it. However, in the absence of reasons, the party does not know why its contention /explanation was not acceptable. This alone prevents the authority from exercising unbridled powers in arbitrary manner while finalizing the Bills of entry arbitrarily. Therefore, we hold that the assessment of the said bills of entry are in breach of natural justice and bad in law. 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 2011. The petitioner was informed of the same in May 2012. The petitioner accepted it as is evident from not having filed an appeal to the Commissioner of Customs (Appeal) or any other authority. An Appeal under Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sense of justice Reasoned decisions are not only vital for the purposes of showing the citizen that he is receiving justice they are also a valuable discipline for the tribunal itself.. 15. The objection of the revenue to invocation of Section 17(5) of the Act is that in this case the assessment was made provisional under Section 18(1) of the Act and were also being finalized under Section 18(2) of the Act. Therefore, it is submitted that Section 17(5) of the Act requiring an issuance of a speaking order will not apply. According to us any quasi judicial decision which could be subject matter of appeal would require reasons to be given. However, in this case in any view of the matter Section 18(2) of the Act at the relevant time read as when the duty leviable on such goods is assessed finally in accordance with the Act then cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then- (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of, 1[the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. 2[(3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order under sub-section (2), at the rate fixed by the Central Government under section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. 10. From the above provisions it is clear that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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