2014 (10) TMI 12 - HC - Customs

Self assessment - Discharge of statutory liability - Held 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. Such submission 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 in my considered view, 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 re-assessment, 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. Court finds that 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 - Decided in favour of assessee.

Summary

Issues:
Failure of Assessing Officer to pass speaking order within statutory period.

Analysis:
The writ petition raised the issue of the Assessing Officer not passing a speaking order within the statutory period despite an application being made. The self-assessment was disputed by the Assessing Officer under sub-section (4) of Section 17 of the Customs Act, 1962, leading to re-assessment without a speaking order being issued. The petitioner argued that the statutory duty of passing a speaking order must be fulfilled by the Assessing Officer, emphasizing that the authority cannot avoid this responsibility by keeping an application pending.

The attention was drawn to sub-section (5) of Section 17 of the Customs Act, 1962, which mandates a speaking order on re-assessment within fifteen days from the date of re-assessment of the Bill of Entry or the shipping bill. The court noted that the duty to pass a speaking order is imposed on the Assessing Officer, irrespective of whether an application is made by the importer or exporter. Referring to a Division Bench judgment, the court reiterated that the Assessing Officer must pass a speaking order within the specified timeframe, except in cases where the importer confirms acceptance of the assessment in writing.

The respondent argued that if the reassessed duty is deposited by the importer or exporter, it implies acceptance and relieves the Assessing Officer from passing a speaking order. However, the court rejected this argument, emphasizing that the legislature's inclusion of the requirement for written confirmation of acceptance must be adhered to strictly. Any other interpretation would defeat the legislative intent. Consequently, the court directed the Assessing Officer to pass a speaking order within fifteen days of the order and communicate it to the petitioner promptly.

The court clarified that its order should not be construed as a decision on the merit of the re-assessment, allowing the Assessing Officer to pass the speaking order without influence from any observation. Finally, the writ petition was disposed of without costs.