2014 (6) TMI 896 - HC - Customs

Rejection of refund claim - Non serving of speaking order for re-asessment - Export of iron ores - calculation of export duty arbitrarily - payment of the assessed duty was made on 20th December, 2007 and protest was lodged on 27th December, 2007. On 31st December, 2007 an application for refund of duty was made. That application was rejected by the Assistant Commissioner of Customs on the ground that there were defects in the application. - Held that - Mr. Saraf appears to be right in his contention that there can, in the circumstances, be no occasion for a fresh order. Order has already been passed. Only the judgment containing reasons has not been delivered. If the exporter or the importer wants the proper officer to deliver his judgment, all that the exporter or the importer has to do is to refrain from issuing his formal acceptance of the order passed under sub-section (4) of Section 17. In that case, the proper officer is obliged to deliver his judgment. The question of passing a fresh order would never arise. Any construction, as submitted by Mr. Choudhury, is likely to give rise to absurd results. When the order, passed by the proper officer reassessing duty under sub-section (4) of Section 17, has been accepted and acted upon, and no appeal has been preferred within the prescribed period, there can be little doubt that the order attained finality. Even in such a case, the proper officer is still under a duty to deliver his judgment as indicated above. - the order under challenge set aside. Proper officer directed to deliver the judgment within four weeks disclosing reasons for the order of reassessment passed under sub-section (4) of Section 17 on 22nd June, 2011 and other similar orders in connection with five other or concerned shipping bills.

Summary

Issues Involved:
1. Assessment of Export Duty on iron ores.
2. Acceptance of reassessment by the exporter.
3. Requirement and timing of a speaking order under Section 17(5) of the Customs Act, 1962.
4. Finality of the reassessment order.
5. Availability and exhaustion of alternative remedies.

Issue-wise Detailed Analysis:

1. Assessment of Export Duty on Iron Ores:
The writ petitioner challenged the assessment of Export Duty on iron ores intended to be exported, alleging that the Department did not accept the contracted price or the DMT weight and instead used the WMT weight arbitrarily. This led to an excess duty payment of Rs. 27,56,146, which the petitioner sought to be refunded. The petitioner requested post-amendment of the Shipping Bill and a speaking order under Section 17(5) or amendment under Section 154 of the Customs Act, 1962.

2. Acceptance of Reassessment by the Exporter:
The petitioner argued that the reassessment made by the Department was not accepted in writing, and thus, the Department was required to pass a speaking order. The Department, however, contended that the petitioner accepted the reassessment by paying the duty and exporting the goods promptly, indicating acceptance of the order.

3. Requirement and Timing of a Speaking Order under Section 17(5) of the Customs Act, 1962:
The Court analyzed sub-sections (4) and (5) of Section 17 of the Customs Act, 1962. It was determined that reassessment under sub-section (4) requires a speaking order if the reassessment is contrary to the self-assessment and not accepted in writing by the importer/exporter. The Court clarified that the proper officer is obliged to deliver a judgment disclosing reasons for the reassessment, which should follow the initial non-speaking order.

4. Finality of the Reassessment Order:
The Department argued that the reassessment order attained finality as the petitioner did not appeal within the prescribed period. The Court agreed, noting that the order was communicated, and the duty was paid on 23rd June 2011. The right to appeal expired by 23rd September 2011, making the order final. However, the Court emphasized that the proper officer still had a duty to deliver a judgment disclosing reasons for the reassessment.

5. Availability and Exhaustion of Alternative Remedies:
The Department contended that the petitioner should have availed the alternative remedy of filing a departmental appeal. The Court dismissed this argument, citing the Whirlpool case, which allows invoking writ jurisdiction when there is a lack of jurisdiction by an administrative or judicial authority. The Court highlighted that the petitioner's failure to appeal did not negate the Department's obligation to provide a speaking order.

Conclusion:
The Court set aside the order under challenge but directed the proper officer to deliver a judgment within four weeks, disclosing reasons for the reassessment order passed on 22nd June 2011 and other similar orders. This ensures compliance with the statutory requirement for a speaking order, maintaining checks and balances against arbitrary reassessments.