2014 (1) TMI 1729 - HC - Customs

Validity of speaking order passed within the statutory period - Self assessment was disputed by the Assessing Officer under sub-section 4 of Section 17 of the Customs Act, 1962 - Reassessment made disputing the correctness of the self assessment by the Assessing Officer but did not pass any speaking order - Held that - the only exception which is carved out in the said sub-section is that the authority is not obliged to pass speaking order if the importer or the exporter confirms his acceptance of the said reassessment in writing. Submission of the petitioner that if the reassessed duty has been deposited by the importer or the exporter that implies the acceptance of the said order and therefore, the Assessing Officer is not under any obligation to pass speaking order cannot be accepted for a simple reason that the legislature was conscious of such situation and incorporated the word in writing . Such confirmation relating to an acceptance must be in writing and cannot be obliterated because of the conduct of the exporter or the importer having chosen to deposit the reassessed duty. Any other interpretation would frustrate the intent and / or the object of the legislature incorporating the words within the statutes. It is to be reminded that the legislature never used any words unnecessarily and, therefore, if there was a conscious intentment to incorporate the words in writing for confirmation of the acceptance of the reassessment, the same is to be followed in its true spirit. If the thing is required to be followed in a particular manner, it is to be done in such a manner and not otherwise. The Assessing Officer cannot sit idle and decline to discharge the statutory duty as provided in sub- Section 5 of Section 17 of the Customs Act 1962. Therefore, the authority shall be free to pass speaking order without being influenced by any observation. - Petition disposed of

Summary

Issues: Failure to pass speaking order within statutory period under Customs Act, 1962. Interpretation of sub-section 5 of Section 17 regarding duty of Assessing Officer to pass speaking order. Exception for passing speaking order if importer or exporter confirms acceptance in writing.

In this judgment by the Calcutta High Court, the main issue revolved around the failure of the Assessing Officer to pass a speaking order within the statutory period despite reassessment being made under sub-section 4 of Section 17 of the Customs Act, 1962. The petitioner contended that the Assessing Officer did not fulfill the statutory duty as required by law. The court highlighted the provision under sub-section 5 of Section 17, which mandates the Assessing Officer to pass a speaking order on reassessment within fifteen days from the date of reassessment of the Bill of Entry or the shipping bill. The court emphasized that this duty is imposed on the Assessing Officer and is not dependent on an application by the importer or exporter.

The respondent authorities argued that an application was made beyond the stipulated fifteen days from reassessment. However, the court, after analyzing the language of the statute, concluded that the duty to pass a speaking order lies with the Assessing Officer and is not contingent upon an application by the importer or exporter. The court referred to a previous Division Bench judgment which supported this interpretation. The only exception mentioned in the statute is if the importer or exporter confirms acceptance of the reassessment in writing. The court rejected the argument that depositing the reassessed duty implies acceptance, emphasizing that the confirmation must be in writing to relieve the Assessing Officer from the obligation to pass a speaking order.

Based on the above analysis, the court held that the Assessing Officer cannot evade the statutory duty prescribed under sub-section 5 of Section 17 of the Customs Act, 1962. The court directed the Assessing Officer to pass a speaking order within fifteen days from the date of communication of the order and to notify the petitioner accordingly within a week. It was clarified that the order should not be construed as a decision on the reassessment's merits, allowing the authority to pass the speaking order independently. The writ petition was disposed of without any costs, emphasizing the importance of statutory compliance and the obligation of the Assessing Officer to fulfill their duties within the specified timeframe.