2008 (7) TMI 602 - HC - Customs

Speaking order - Import of gold bar - goods were assessed to a higher rate of duty. They cleared the goods by paying the higher duty assessed. In the bill of entry itself the petitioner registered their protest against such assessment, which was followed by Ext. P4 Letter of Protest also - Held that - no speaking order passed by the 3rd respondent in this case, petitioner is entitled to get a speaking order against which he can file an appeal within the period prescribed under Section 128 from the date of communication of that order to them. this writ petition is allowed, respondent is directed to pass his speaking order in respect of the import in question and serve the same on the petitioner within a period of 15 days from the date of receipt of a copy of this judgment.

Summary

Issues:
1. Failure to pass a speaking order by the assessing authority for challenging the assessment in appeal.
2. Contention regarding the limitation period for filing an appeal.
3. Interpretation of Section 17(5) of the Customs Act regarding passing a speaking order.

Issue 1: Failure to pass a speaking order for challenging the assessment in appeal
The petitioner, a banking company, imported gold bars and protested against the higher duty assessed in the Bills of Entry. They requested a speaking order to challenge the assessment in appeal, but the assessing authority did not pass one. The petitioner filed a writ petition seeking a mandamus to issue a speaking order citing reasons for denying the concessional rate of duty. The court held that as per Section 17(5) of the Customs Act, when an assessee objects to the assessment, the authority must pass a speaking order. Since the assessing authority failed to do so, the petitioner was justified in seeking a speaking order to understand the assessment reasons before filing an appeal.

Issue 2: Contention regarding the limitation period for filing an appeal
The respondents argued that the petitioner did not approach the appellate authority within the prescribed limitation period for filing an appeal. They claimed that the Bill of Entry itself could be treated as an appealable order, citing a Tribunal decision. However, the court noted that the Tribunal decision did not mandate filing an appeal against the Bill of Entry without a speaking order. The court emphasized that the limitation for filing an appeal under Section 128 starts from the communication of the decision or order, which the Bill of Entry does not constitute. Therefore, the petitioner was entitled to a speaking order before the limitation period for filing an appeal could begin.

Issue 3: Interpretation of Section 17(5) of the Customs Act regarding passing a speaking order
Section 17(5) of the Customs Act mandates that when an assessment is contrary to the importer's claim, the proper officer must pass a speaking order. The court clarified that the failure of the assessing authority to pass a speaking order does not prevent the petitioner from seeking one and subsequently filing an appeal. The court directed the assessing authority to issue a speaking order within 15 days and allowed the petitioner to file an appeal against that order within the prescribed limitation period under Section 128. This judgment reaffirmed the importance of a speaking order for proper assessment and appeal procedures under the Customs Act.