2016 (11) TMI 1426 - HC - Customs

Speaking order - duty paid under protest - Section 128 of the Customs Act, 1962 - Held that - Section 17(5) contemplates the re-assessment order in writing by the proper officer on the re-assessment, within a specified time. Apparently, no such order had been passed whereas additional duty has been imposed in the bill of entry, which the petitioner paid under protest. Unless an order is passed in terms of Section 17(5), the reassessment made by the officer in the bill of entry does not become a decision or order which could be appealed against - in order to enable the petitioner to prefer an appeal, necessarily, the officer concerned will have to pass an order in terms of Section 17(5) - petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to rejection of appeal due to lack of demand or speaking order against the appellant.

Analysis:
The petitioner challenged the rejection of the appeal (Ext. P6) on the grounds of no demand or speaking order against the appellant. The petitioner imported Kiln Burning Roofing Tiles from China, cleared through customs, and was later asked to pay additional duty which was paid under protest. The main contention was that the reassessment in the bill of entry constitutes a decision or order under Section 128 of the Customs Act, 1962. The petitioner argued that the reassessment should be appealable, as per Section 17(4) and 17(5) of the Act.

The court examined the provisions of Section 128 of the Customs Act, 1962, which allows appeals against decisions or orders passed by customs officers lower in rank. Section 17(4) empowers the proper officer to re-assess duty if the self-assessment is found to be incorrect. Subsequently, Section 17(5) mandates the proper officer to pass a speaking order on the reassessment within a specified time frame. The court noted that in this case, no such order was passed by the officer, despite additional duty being imposed and paid under protest by the petitioner.

The court emphasized that for an appeal to be filed, the officer must pass an order in terms of Section 17(5) following reassessment. Without such an order, the reassessment made by the officer does not constitute a decision or order eligible for appeal. The court highlighted the importance of procedural compliance and the need for a proper reassessment order to be issued before an appeal can be lodged. Additionally, Section 18, which deals with provisional assessment of duty, was also considered to provide context to the reassessment process.

In conclusion, the court directed the first respondent to pass an order of reassessment in accordance with Section 17(5) within 30 days and provide a copy to the petitioner. The court left the right of the petitioner to prefer an appeal against the said order open, emphasizing the significance of a proper reassessment order for appeal purposes.