2023 (3) TMI 753 - AT - Customs

Levy of of additional duty - seeking a direction to the Assistant Commissioner to refund the excess duty collected - rejection of appeals on the ground that the duty was not paid under protest nor the Bills of Entry have been assessed provisionally - HELD THAT - During the relevant time after an importer files a Bill of Entry (BE) under section 46 of the Customs Act 1962 (Act) for the goods imported by him it shall as per section 17(1) be examined and tested by the proper officer. As per 17(2) after such examination and testing the duty if any leviable on such goods shall save as otherwise provided in section 85 be assessed by him. While as far as the description of the goods quantity value etc. are concerned the importer is bound to state the truth in the BE it is left to the proper officer to assess the goods to duty. Assessment means determination of the tax liability. While an importer can make a claim for exemption under any notification he feels is applicable to his goods it is left to the proper officer to examine that claim accept or reject it or to assess the goods to duty based on a provision not factored by the importer in the BE. In case the proper officer does not agree with the claim for exemption made by the importer or he seeks to impose duty not factored in the BE filed by the importer he can resort to finalizing the assessment as provided for in section 17(5) of the Act. This being so it was for the Learned Commissioner ((Appeals) to examine whether the provisions of the said section had been satisfied. When he had found that the appellant was directed by the original authority to take steps for assessing the goods under Notification No.49/2008-CE(NT) dated 24.12.2008 he should also have examined whether there was a written acceptance of that direction by the appellant/ importer in the absence of which the proper officer should have passed a speaking order within fifteen days of the date of assessment of the BE - Without a written acceptance it could not have been concluded by the Learned Commissioner (Appeals) that since the appellants have cleared the goods on payment of duty as suggested by the proper officer they have accepted the assessment of the BE. Matters remanded back to the original authority to pass a speaking order as contemplated under section 17(5) of the Customs Act 1962.

Summary

Issues:
The issues involved in this case are the imposition of additional duty of customs on imported rubber gloves and the rejection of appeals by the Commissioner (Appeals) due to non-payment of duty under protest or provisional assessment.

Imposition of Additional Duty:
The appellant, M/s. Kanam Latex Industries (P) Ltd., imported rubber gloves in bulk and was directed by the original authority to indicate the Maximum Retail Price (MRP) on the packets for assessment of additional customs duty under Central Excise Notification No. 49/2008-CE(NT) dated 24.12.2008. The goods were cleared on payment of duty as suggested by the lower authority. The Commissioner (Appeals) rejected the appeals on the grounds that the duty was not paid under protest nor was the assessment done provisionally. The appellant's arguments and case laws were deemed irrelevant to the issue. The Tribunal noted that the appellant did not dispute the assessment before the lower authority and had not produced any records to prove they were directed to pay the duty under the said notification. Therefore, the appeal was rejected, and the assessment orders were upheld.

Rejection of Appeals:
The appellant's counsel argued that their only prayer was to remand the matters to the original authority for a decision on merits. They contended that if duty was paid under protest, there was no legal necessity to file an appeal against the assessment order. The counsel highlighted the procedural requirements under the Customs Act, 1962, stating that the proper officer must first vacate the protest by passing a speaking order before an appeal can be filed. The Commissioner (Appeals) was criticized for misinterpreting the law governing the subject. The appellant sought a remand for reassessment of the Bills of Entry and requested justice based on the merits of their case. The Tribunal, after reviewing the appeals and relevant documents, found that the Commissioner (Appeals) should have examined whether the procedural requirements of section 17(5) of the Customs Act, 1962, were met. Since there was no written acceptance of the direction by the appellant to pay duty under the notification, the Tribunal set aside the impugned orders and remanded the matters back to the original authority for a speaking order as required by the Act.

Separate Judgement:
The Appellate Tribunal, comprising Ms. Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical), pronounced the judgment on 17.3.2023, setting aside the orders of the Commissioner (Appeals) and remanding the matters back to the original authority for compliance with section 17(5) of the Customs Act, 1962.