2011 (7) TMI 678 - HC - Customs

Refund - Classification - Notification No.04/2006 - Held that the appellant, on payment of the assessed amount, removed the imported goods on 20th December, 2007; however, on 27th December, 2007 the appellant lodged protest before the Assistant Commissioner of Customs complaining realisation of excess amount of duty - it is a fit case where the orders passed by all the authorities below should be set aside and the Assistant Commissioner of Customs should be asked to pass specific order on the basis of complaint lodged by the appellant in terms of sub-Section 5 of Section 17 of the Act within one month from the date of communication of this order giving an opportunity of hearing to the appellant - Decided in favor of the assessee

Summary

Issues:
1. Duty cast upon Assistant Commissioner of Customs to pass a speaking order in terms of sub-Section 5 of Section 17 of the Customs Act.
2. Whether the order of assessment had become final.
3. Justification of setting aside the Order of the Commissioner (Appeals) by the Tribunal.
4. Filing of the refund claim as a request for re-assessment of the Bill of Entry.
5. Lis between the parties and assessment of Bill of Entry.

Issue 1:
The appellant raised a question on whether the Assistant Commissioner of Customs was obligated to pass a speaking order under sub-Section 5 of Section 17 of the Customs Act after the appellant pointed out excess duty within 15 days of removing the imported goods. The Court found that the Assistant Commissioner failed to pass such an order within the stipulated time frame, indicating that the order of assessment had not become final. The Tribunal erred in holding that the appellant had accepted the assessment order, leading to the Court's decision to set aside all previous orders and direct the Assistant Commissioner to pass a specific order based on the appellant's complaint within one month.

Issue 2:
The Court analyzed the provisions of sub-Section 5 of Section 17 of the Customs Act, which mandates the passing of a speaking order by the proper officer within 15 days of assessment unless the importer confirms acceptance in writing. As the appellant had lodged a protest within 15 days, the Assistant Commissioner's failure to pass a speaking order meant that the assessment order had not attained finality. The Court emphasized that without the required order, the acceptance of the assessment could not be presumed, leading to the Tribunal's error in rejecting the refund claim.

Issue 3:
The Tribunal's decision to set aside the Order of the Commissioner (Appeals) was based on the premise that the appellant had accepted the assessment order, rendering the refund claim invalid. However, the Court found that the failure to pass a speaking order as required by law meant that the assessment order was not final. Therefore, the Tribunal's justification for setting aside the Commissioner's order was deemed erroneous, leading to the Court's decision to allow the appeal and direct the Assistant Commissioner to reconsider the refund claim.

Issue 4:
The Court addressed the argument that filing a refund claim equated to a request for re-assessment of the Bill of Entry, especially when the assessment was allegedly incorrect. By highlighting the legal obligation for the Assistant Commissioner to pass a speaking order within the specified time frame, the Court emphasized the importance of procedural compliance in addressing discrepancies in duty assessment, as raised by the appellant.

Issue 5:
The Court examined the absence of a Lis between the parties and clarified that the matter primarily involved the assessment of the Bill of Entry rather than an Adjudication Order. By focusing on the legal requirements under the Customs Act, the Court underscored the significance of proper assessment procedures and the duty of the Assistant Commissioner to address objections raised by importers within the specified timeline, ensuring fair treatment and adherence to statutory provisions.

The Court's detailed analysis of the issues raised in the appeal highlighted the legal obligations of the Assistant Commissioner of Customs, the implications of failing to pass a speaking order, and the procedural errors made by the Tribunal in rejecting the refund claim. By emphasizing compliance with statutory provisions and the need for proper assessment procedures, the Court set aside previous orders and directed the Assistant Commissioner to address the appellant's objections within a specified timeframe, ensuring a fair and lawful resolution of the dispute.