2015 (3) TMI 903 - HC - Customs

Classification of goods - Violation of principle of natural justice - Opportunity of hearing not granted - Held that - Admittedly, opportunity was not given to the petitioner before passing such orders and there is no speaking order at all, it is only a correspondence between the parties. However, Section 149 of Customs Act is silent about the hearing the petitioner. The respondent ought not to have passed an order, without hearing the petitioner and he could have given an opportunity of hearing to the petitioner, before passing any order. Since communication dated 28.08.2014 asked the petitioner to furnish documents and also stated that the amendment is barred by the proviso to Section 149 of the Customs Act, which is extracted supra, the Appellate Authority has not passed any speaking order, though the petitioner approached the original authority for getting a speaking order and the documents referred to by the petitioner dated 05.06.2014, 25.04.2014 and 28.08.2014, cannot be treated as an order. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Petitioner seeking a speaking order for amendment of shipping bills.
2. Discrepancy in classification leading to short payment of duty drawback.
3. Refusal by respondent to pass a speaking order for amendment.
4. Interpretation of Section 149 of the Customs Act, 1962.
5. Lack of opportunity given to petitioner before passing orders.
6. Absence of a speaking order and the need for a proper hearing.

Analysis:
1. The petitioner, a Government-recognized Export house, exported garments using shipping bills filed with the Inland Container Depot. The officer rejected the classification, resulting in a drawback under a different serial number, causing a duty drawback shortfall. The petitioner sought a speaking order for amendment, as the assessment did not align with their claim.

2. Despite the petitioner's request, the respondent refused to pass a speaking order, citing no re-assessment and acceptance of self-assessment. The petitioner justified their claim and requested re-assessment of shipping bills, leading to the rejection of the amendment request. The appeal filed was deemed not maintainable due to the absence of a speaking order, prompting the petitioner to file a writ petition.

3. The Standing Counsel for the respondent relied on Section 149 of the Customs Act, stating that amendments to documents like shipping bills after goods have been cleared or exported are generally not authorized. However, the court noted that the respondent did not provide an opportunity for the petitioner to be heard before passing orders, emphasizing the importance of due process.

4. The court found that the absence of a speaking order and the lack of a proper hearing for the petitioner were significant shortcomings. While Section 149 of the Customs Act does not explicitly mention a hearing for the petitioner, the court emphasized that the respondent should have allowed the petitioner a chance to present their case before making a decision.

5. Consequently, the court set aside the impugned order and remitted the matter to the original authority. The petitioner was directed to appear before the authority, submit objections, and receive a fair hearing. The authorities were instructed to issue detailed orders based on the submissions, ensuring compliance with the law and disregarding the previous order. Failure to attend the hearing would empower the authority to make fresh orders. No costs were awarded in this decision.