2005 (3) TMI 356 - AT - Customs

Appeal - Limitation specified in Section 128 - Appealable order - Departmental clarification - imports Polypropylene granules which is raw material used in the manufacture of BOPP film - HELD THAT - It is settled law that the assessment of bill of entry under Section 47 of the Customs Act is appealable order in itself. The bills of entry were assessed by enhancing the assessable value of the goods during the period from July, 1999 to April, 2001 and the appeals have been filed on 16-11-2003 which is much beyond the period specified in Section 128 of the Customs Act for filing the appeal. There is no force in the submissions of the learned Advocate that once they have paid the duty under protest and endorsed the same on the bill of entry it is the duty of the department to pass a speaking order. Merely by saying that the duty has been paid by them under protest will not make such an order a non appealable order. We also observe that the first letter addressed by them to the department requesting for passing a speaking order was sent much after the period of limitation specified in Section 128 of the Customs Act for filing appeal had expired. The department had immediately informed the Appellants that the assessed bill of entry is itself an assessment and appeal can be filed on that basis itself. Circular No. 91/2003-Cus., dated 14-10-2003 is in the nature of administrative direction by the Ministry to the field formations to the effect that on the request of the importer the grounds for not accepting the transaction value should be intimated in writing to the importer. This circular, however, in our opinion, nowhere provides that if the value is enhanced on the bill of entry and the goods are cleared by discharging the duty liability on the enhanced assessable value the importer is not required to file an appeal. The importer, as per the Circular, is required to make a request to the proper officer, before getting the goods cleared, to intimate the reasons for doubting the accuracy of the transaction value declared by him. Accordingly we find no merit in the appeal which is rejected.

Summary

Issues:
1. Timeliness of filing appeals before the Commissioner (Appeals) regarding Bills of Entry for the period from July 1999 to August 2000 under Section 128 of the Customs Act.

Analysis:
The appeal in question raised the issue of whether the appeals filed by M/s. Max India Ltd. before the Commissioner (Appeals) within the time limit specified in Section 128 of the Customs Act. The Appellants contended that the duty was paid under protest, and it was the duty of the Customs Department to vacate the protest by issuing an appealable order after disclosing the reasons for enhancing the assessable value. They argued that the appeals were not time-barred as the protest had not been vacated by the department. The Appellants emphasized the requirement for the department to issue a speaking order when the assessable value is enhanced and the importer lodges a protest, citing relevant case laws and a Circular issued by the Board. However, the Respondent argued that the appeals were filed much beyond the specified time limit and that the assessed bill of entry itself constituted an appealable order. The Respondent highlighted that the Appellants did not request the High Court to condone the delay for pursuing the statutory remedy under the Customs Act.

The Tribunal considered the submissions from both sides and analyzed the legal provisions and precedents. It was established that the assessment of a bill of entry under Section 47 of the Customs Act is an appealable order. The Tribunal noted that the appeals were filed after the specified time limit, and the first letter requesting a speaking order was sent beyond the limitation period. The Tribunal emphasized that the duty paid under protest does not render an order non-appealable, and once an order is passed, it must be challenged in the higher appellate forum. The Tribunal also referenced previous decisions and the Circular issued by the Ministry, concluding that the appeal filed by the Appellants was time-barred under Section 128 of the Customs Act. The Tribunal rejected the appeal, stating that the decisions cited by the Appellants did not support their case, and the Circular did not exempt the importer from filing an appeal when the assessable value is enhanced on the bill of entry.

In conclusion, the Tribunal upheld that the appeals filed by M/s. Max India Ltd. were time-barred under Section 128 of the Customs Act due to being filed beyond the specified time limit. The duty paid under protest did not exempt the Appellants from filing an appeal against the enhanced assessable value, and the requirement for a speaking order was not sufficient to negate the time limitation for filing appeals. The Tribunal dismissed the appeal, emphasizing the importance of adhering to the statutory timelines for filing appeals in customs matters.