2018 (4) TMI 1438 - HC - Customs

Maintainability of petition - it is submitted that the importer has not submitted his representation against the reassessment for enabling the proper officer to pass a speaking order - Held that - a direction is issued to the petitioner to make a representation to the proper officer on the reassessment made along with the supporting documents and records, within a period of two weeks from the date of receipt of a copy of this order. On such receipt of such representation, the proper officer shall pass orders, within 15 days as specified under Section 17(5) of the Act recording reasons therefor. The order in appeal has not reached finality. It is under appeal before the CESTAT, Madras. In such circumstances, it is not proper to direct the authorities to follow the order, which is under challenge. Petition merits no consideration and is dismissed.

Summary

Issues Involved:
Classification of goods under Customs Tariff Heading, challenge of classification by importer, authority's power to reclassify goods, availability of alternative remedies, submission of representation against reassessment, finality of orders in appeal.

Analysis:
The petitioner, an importer of quick lime, filed bills of entries for clearance of goods classified under Customs Tariff Heading (CTH) 25221000. The respondent disagreed with this classification and reclassified the goods under CTH 28259090, attracting a higher tax rate. The petitioner challenged this reclassification, citing a previous favorable decision by the Commissioner (Appeals) in 2017. Despite the earlier decision, the respondent reclassified the goods again in 2018. The petitioner argued that the lower authority should follow the orders of superiors, seeking a direction from the Court to set aside the reassessment and to follow the previous order. Two writ petitions were filed for this purpose.

In response, the respondent's counsel contended that the appeal against the Commissioner (Appeals) order was pending before CESTAT, Madras, and until finality is reached, the original authority cannot be compelled to follow the order. The counsel also highlighted the importer's obligation to submit a representation against reassessment and exhaust alternative remedies before approaching the Court. Failure to follow this procedure could render the writ petitions non-maintainable.

The Court found that the writ petitions were not maintainable due to the availability of alternative remedies under the Customs Act, 1962. Section 17(4) of the Act allows for reassessment if self-assessment is incorrect, with Section 17(5) requiring the importer to make a representation against reassessment. In this case, the importer had not submitted a representation, hindering the proper officer from passing a speaking order.

Considering the circumstances, the Court directed the petitioner to submit a representation to the proper officer within two weeks, along with supporting documents, for reassessment. The proper officer was instructed to pass orders within 15 days, as per Section 17(5) of the Act. If still dissatisfied, the petitioner could avail appeal remedies under the Act. As the order in appeal was under challenge before CESTAT, the Court declined to direct authorities to follow it, leading to the dismissal of the writ petitions.

In conclusion, one writ petition was disposed of, and the other was dismissed without costs. The connected miscellaneous petitions were closed accordingly.