2013 (10) TMI 62 - HC - Customs

Refund of provisional assessed duty deposited under protest - period of limitation - Held that - no final assessment under Section 17 has been passed much less any speaking order has been made indicating as to why the benefit claimed by the appellant, i.e., exemption from payment of the custom duty vide Notification No.21/2002 dated 01.03.2002 has been denied to it. It is nobody s case that the importer confirms its acceptance of the assessment in writing. On the contrary, from the very beginning, the appellant s claim is that it is exempted from payment of customs duty on the imported cargos in question vide Notification No.21/2002 dated 01.03.2002. Therefore, as contemplated under Section 17, the Proper Officer is obliged to pass a speaking order of assessment, which has not been done in the instant case. Principle of natural justice - Held that - There is no dispute over the legal proposition settled by the Hon ble Supreme Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). It goes without saying that refund flows from an order. So long as an order of assessment stands, the duty assessed would be payable as per the said order of assessment. If that order is not challenged, no refund can be claimed. The officer empowered to consider different claims for refund cannot review the order of assessment for which right of appeal has been created under the statute. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. When an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. Proper officer directed to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 after giving an opportunity of hearing to the appellant.

Issues Involved:
1. Whether the communication dated 10.3.2010 by the Superintendent (Import) Customs House, Paradeep is an order of assessment appealable under Section 128 of the Customs Act.
2. Whether Section 18(2) of the Customs Act contemplates passing of any final assessment order.
3. Whether the Proper Officer is obliged to pass a speaking order of assessment under Section 17(2) read with Section 17(5) of the Customs Act when the classification of imported cargo was in dispute.
4. Whether finalization of the bill of entry without considering the appellant's objections and without affording a hearing violates principles of natural justice.
5. Whether the CESTAT's rejection of the appellant's refund application is just and proper.
6. Whether the refund application is maintainable without challenging the provisional or final assessment order in appeal.
7. What order should be passed.

Detailed Analysis:

Issue 1: Appealability of Communication Dated 10.3.2010
The court examined whether the communication dated 10.3.2010 by the Superintendent (Import) Customs House, Paradeep could be considered an assessment order under Section 17(2) read with Section 17(5) of the Customs Act, which would be appealable under Section 128. The court found no evidence of a regular/final assessment order being passed as required under Section 17. The communication merely informed the appellant that the bill of entry had been assessed finally under Section 18(2), which does not contemplate passing a final assessment order.

Issue 2: Final Assessment Order under Section 18(2)
The court clarified that Section 18(2) of the Customs Act does not require passing a final assessment order. It only involves informing the importer/exporter about the duty finally assessed. The final assessment referred to in Section 18(2) is the assessment made under Section 17, which had not been done in this case.

Issue 3: Obligation to Pass a Speaking Order
The court emphasized that under Section 17(5) of the Act, the Proper Officer must pass a speaking order if the assessment is contrary to the importer's claim and the importer does not accept the assessment in writing. In this case, the appellant consistently disputed the classification and duty assessment, necessitating a speaking order, which was not provided.

Issue 4: Violation of Natural Justice
The court held that finalizing the bill of entry without addressing the appellant's objections and without providing a hearing violated the principles of natural justice. The court reiterated that reason is the heartbeat of every conclusion and that the appellant should not be condemned unheard.

Issue 5: CESTAT's Rejection of Refund Application
The court acknowledged the Supreme Court's ruling in Priya Blue Industries Ltd. that refund claims cannot be entertained without challenging the assessment order. However, in this case, no proper assessment order was passed, making it impossible for the appellant to challenge it in appeal.

Issue 6: Maintainability of Refund Application
The court found that without a proper assessment order under Section 17, the appellant could not be expected to challenge it in appeal. Consequently, the refund application could not be dismissed on the grounds of not challenging an assessment order that did not exist.

Issue 7: Order
The court directed the Proper Officer to pass a speaking order in terms of Section 17(2) read with Section 17(5) after giving the appellant an opportunity of hearing within three months. The court did not express any opinion on the merits of the appellant's claim for exemption from customs duty. The appellant was allowed to avail any legal remedy upon receipt of the assessment order.

Conclusion:
The appeal was disposed of with directions to the Proper Officer to pass a speaking order and complete the process within three months. The appellant was granted the right to pursue further remedies based on the new assessment order.

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