TMI Blog2005 (3) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... is much beyond the period specified in Section 128 of the Customs Act for filing the appeal. There is no force in the submissions of the learned Advocate that once they have paid the duty under protest and endorsed the same on the bill of entry it is the duty of the department to pass a speaking order. Merely by saying that the duty has been paid by them under protest will not make such an order a non appealable order. We also observe that the first letter addressed by them to the department requesting for passing a speaking order was sent much after the period of limitation specified in Section 128 of the Customs Act for filing appeal had expired. The department had immediately informed the Appellants that the assessed bill of entry is its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of BOPP film; that they had declared transaction value on the Bills of Entry as per the invoice received from the foreign suppliers and which is the transaction value; that however, the assessing officer unilaterally and without furnishing any reason enhanced the assessable value; that the Appellants having no other immediate alternative to evade disruption of production was forced to pay the customs duty at the enhanced assessable value under protest during the period from July, 1999 to April, 2001; that as the duty was paid by them under protest it was the duty of the Customs Department to vacate the protest lodged by them by issuing an appealable order after following the principle of natural justice; that as the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the assessing group; that therefore, it was the duty of the Department to vacate the protest by passing a speaking order; that it has been held by the Tribunal in the case of Vikas Spinners v. C.C. Lucknow - 2001 (128) E.L.T. 143 (T) that once the loading in assessable value has been in consultation with and affirmed by signature on back of the bill of entry by representative of the importer the same is binding on the importer and importer is estopped from challenging the same subsequently; that accordingly if the loading of the assessable value has been not been accepted by the importer the department has to issue a speaking order giving the reasons for loading the assessable value. He also relied upon the decision in the case of Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a A. Mishra, learned SDR, submitted that an assessment of Bill of Entry under Section 47 of the Customs Act is an appealable order and once the value has been enhanced, an appeal against the same has to be preferred by them in accordance with the provisions of Section 128 of the Customs Act; that the bills of entry were assessed during the period from July 1999 to April 2001 and even first letter requesting for speaking order was addressed by them only on 16-12-2000 which is much beyond the period of 3 months within which the appeal under Section 128 of the Customs Act was required to be filed before the Commissioner (Appeals) at the material time. She, further, mentioned that the Dy. Commissioner immediately under letter dated 26-12-2000 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Merely by saying that the duty has been paid by them under protest will not make such an order a non appealable order. We also observe that the first letter addressed by them to the department requesting for passing a speaking order was sent much after the period of limitation specified in Section 128 of the Customs Act for filing appeal had expired. The department had immediately informed the Appellants that the assessed bill of entry is itself an assessment and appeal can be filed on that basis itself. The Department has also mentioned the decision in the case of Khemka Travels v. C.C. - 1992 (57) E.L.T. 458 and C.C., Bombay v. Hari Co. - 1997 (92) E.L.T. 518 (T) wherein it has been held that order of assessment on a bill of entry is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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