2022 (6) TMI 214 - AT - Customs

Power of Commissioner (appeals) - appeal was considered on merit and directions were issued to the lower authority for re-assessing the Bills of Entry with consequential relief - contrary to the provisions of Section 128 (3) (b) (ii) of the Customs Act, 1962 or not - proper officer enhanced the value of the imported goods without citing any reasons - request for for passing of speaking order for re-assessment done in the Bill of Entry also not answered - HELD THAT - The original authority had not passed any speaking order while enhancing the value in terms of Section 17 (5) ibid. The statutory provisions contained in sub-section (5) of Section 17ibidare amply clear that where any re-assessment done is contrary to the selfassessment done by the importer, involving in the issue of valuation of goods etc., then the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of the re-assessment of the Bill of Entry. It is an admitted fact on record that though the declared value of the imported goods was enhanced by the proper officer from USD 8 per unit to USD 30 per unit, but no speaking order to such effect, as contemplated under the statute has been passed by the proper officer of Customs. Certain amendments were carried out to Section 128 of Customs Act,1962 w.e.f.29.03.2018 by the Finance Act, 2018. The effect of amendment was that the Commissioner (Appeals) was empowered under the statute to refer the matter back to the adjudicating authority with direction for fresh adjudication or decision, concerning the situation, where no order or decision has been passed after reassessment under Section 17ibid. The learned Commissioner (Appeals) should have remanded the case back to the original authority with a direction for fresh adjudication or decision - Appeal allowed by way of remand to the original authority for passing of the speaking order with regard to the value enhanced in the Bills of Entry.

Summary

Issues:
1. Proper assessment of imported goods at a different value than declared by the appellant.
2. Adherence to statutory provisions under Section 17(5) of the Customs Act, 1962.
3. Interpretation of amendments to Section 128 of the Customs Act, 1962.
4. Compliance with the statutory provisions by the Commissioner (Appeals).
5. Granting of consequential relief and direction for re-assessment by the lower authority.

Analysis:
1. The appellant imported goods with a declared value of USD 8 per unit, but the proper officer assessed the value at USD 30 per unit without providing any reasons. The appellant paid the duty under protest and requested a speaking order for re-assessment, which was not provided. The appeals were filed before the Commissioner (Appeals) who set aside the assessment orders with directions for re-assessment and consequential relief. The Revenue challenged this decision, arguing it was contrary to Section 128(3)(b)(ii) of the Customs Act, 1962.

2. The Tribunal noted that the proper officer did not pass a speaking order as required under Section 17(5) of the Customs Act, 1962, when enhancing the declared value. The statutory provision mandates a speaking order within fifteen days of re-assessment if it contradicts the importer's self-assessment. Since no such order was issued, the Tribunal found the assessment improper.

3. Amendments to Section 128 of the Customs Act, 1962, empowered the Commissioner (Appeals) to refer cases back for fresh adjudication when no decision is made after reassessment under Section 17. The Commissioner should have remanded the case for fresh adjudication instead of deciding on merits and granting directions for relief, as done in this case.

4. The Tribunal held that the Commissioner's order was not in line with the amended provision of Section 128 and that granting consequential relief prematurely was not proper. The admissibility of relief should be determined by the proper officer upon passing the assessment/re-assessment order. Therefore, the direction given by the Commissioner was deemed without legal sanction, necessitating the setting aside of the impugned order.

5. Consequently, the Tribunal set aside the impugned order and remanded the case to the original authority for a speaking order on the enhanced value in the Bills of Entry. The appellant should be given an opportunity for a personal hearing, and the original authority is expected to complete the assessment within three months from the date of the Tribunal's order. Stay applications were also disposed of accordingly.