2011 (8) TMI 578 - AT - Customs

Validity of Speaking Orders - Importer claimed benefit of Notification 20/2006 - Duty under protest - Held That - As per Sec 17(5) of Custom Act in case the claim of the importer / exporter is not accepted by the assessing officer he is duty bound to pass a speaking order within 15 days from the date of assessment of Bill of Entry or Shipping Bill. Assessing Officer directed to pass speaking order within 30 days from the receipt of this order.

Summary

Issues:
1. Failure to pass a speaking order as per Section 17(5) of the Customs Act.
2. Denial of refund claim due to non-challenge of assessment order.
3. Requirement of a speaking order for challenging assessment order.
4. Duty of the assessing officer to pass a speaking order within a specified time frame.

Analysis:

1. The appeal was filed by the Revenue against an order where the Commissioner (Appeals) set aside the assessment order due to the absence of a speaking order as requested by the importer/appellant. The Customs Act mandates passing a speaking order within 15 days of assessment if the importer's claim is contrary to the assessment. The Tribunal directed the assessing officer to pass a speaking order within 30 days to allow the appellant to challenge the assessment order properly.

2. The Revenue argued that the refund claim by the respondents was not maintainable as they did not challenge the assessment order through a statutory appeal. Citing a decision of the Bombay High Court, the Revenue contended that challenging the assessment order is a prerequisite for a refund claim. However, the Tribunal emphasized the importance of a speaking order before challenging an assessment and remanded the matter for proper consideration after the speaking order is issued.

3. The respondents invoked Section 17(5) of the Customs Act to support their position that without a speaking order from the assessing officer, they were unable to challenge the assessment order through an appeal. The Tribunal agreed that the absence of a speaking order hindered the respondents from challenging the assessment order properly. They referenced a decision of the Kerala High Court to strengthen their argument.

4. In the absence of a speaking order despite the request made by the respondents, the Tribunal highlighted the duty of the assessing officer to pass a speaking order within 15 days of assessment. Since no speaking order was issued even after several years, the Tribunal directed the assessing officer to comply with this requirement within a specified timeframe to ensure proper adjudication of the refund claim and assessment of the goods.

In conclusion, the Tribunal disposed of the appeal by directing the assessing officer to pass a speaking order promptly, allowing the respondents to challenge the assessment order effectively and ensuring a fair consideration of the refund claim in light of the legal provisions outlined in the Customs Act.