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TMI Blog2023 (12) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Sulphur (Crystex HS OT 20) from Germany and filed Bill of Entry No.263290 dt. 10/02/2010 (appeal No.C/28553/2013) and Bill of Entry No.250740 dt. 28/07/2009 (appeal No.C/28554/2013) claiming classification under CTH 2503.00.90 of Customs Tariff Act, 1975. They have declared the goods imported as insoluble Sulphur with trade name "Crystex HS OT 20 which is used as vulcanising agent for rubber. The assessing authority rejected the classification claimed by the appellant and assessed the goods finally under CTH 3812.30.30. The appellant objected to the said assessment; however cleared the goods on payment of duty 'under protest'; later filed appeal before the learned Commissioner(Appeals) challenging the said assessment. The learned Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata-IV [2019(368) ELT 216 (SC)], the assessment order is appealable. 4. Learned AR for the Revenue reiterated the findings of the learned Commissioner(Appeals). 5. Heard both sides and perused the records. 6.1. The short question involved in the present case is whether the learned Commissioner(Appeals) is justified in rejecting the appeals without deciding the issue on merits taking the recourse of Section 17(5) of the Customs Act, 1962. The said provision is as follows:- "17. Assessment of duty. - 1..... 2..... 3..... 4..... 5. Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 7. In view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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