2021 (10) TMI 254 - HC - Customs

Violation of principles of natural justice - Faceless assessment - reassessment of bill of entry - personal hearing in case of reassessment, provided or not - levy of Anti Dumping Duty - import of gear boxes for what is known as Wind Operated Electricity Generator - whether circular No.9/2020 dated 05.06.2020 is subsumed by circular No.55/2020 dated 17.12.2020? - HELD THAT - This will fall under the case of THE ASSISTANT COMMISSIONER OF STATE TAX AND OTHERS VERSUS M/S COMMERCIAL STEEL LIMITED 2021 (9) TMI 480 - SUPREME COURT , as it would be violation of principles of natural justice which is ingrained in reassessment proceedings vide the aforementioned circulars. In any event no elucidation is requied to say that alternate remedy rule is not an absolute rule, it is discretionay and it is a self-imposed rule qua writ jurisdiction. It is repeatedly held that alternate remey rule has to be applied with utmost rigour in fiscal law Statutes by following ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER 1984 (11) TMI 63 - SUPREME COURT case. It is necessary to record that the learned counsel for writ petitioner submitted that provisional assessment and re-export may please be permitted and writ petitioner is willing to provide 100% security by way of bank guarantee. It is open to writ petitioner to make this plea before third respondent, if the writ petitioner chooses to do so and the third respondent shall consider the same on its own merits and in accordance with law - Impugned speaking orders are set aside solely on the ground that personal hearing has not been granted to the importers/writ petitioners though importers/writ petitioners have sought for one qua re-assesment. Petition disposed off.

Summary

Issues involved:
- Import of gear boxes for 'WoEG'
- Imposition of Anti-Dumping duty on imported goods
- Self-assessment process under Section 17(5) of Customs Act, 1962
- Requirement of personal hearing in case of reassessment
- Discrepancy between circulars issued by Central Board of Indirect Taxes and Customs
- Availability of alternate remedy under Section 128 of Customs Act
- Exception to the alternate remedy rule in exceptional circumstances

Analysis:

The judgment by the High Court of Madras dealt with four writ petitions concerning the import of gear boxes for 'WoEG' and the imposition of Anti-Dumping duty. The case revolved around the self-assessment process under Section 17(5) of the Customs Act, 1962. The writ petitioners challenged the Anti-Dumping duty imposed through Bills of Entry and subsequent speaking orders issued during the self-assessment process. Two writ petitions became infructuous as they had been resolved, while the other two petitions focused on the necessity of personal hearing during reassessment.

In the context of the requirement for personal hearing during reassessment, the writ petitioners emphasized the importance of being granted an opportunity for a personal hearing via video conferencing, as per Circular No.55/2020-Cus. issued by the Central Board of Indirect Taxes and Customs (CBIT&C). The circular highlighted the need for re-assessment to be in line with the Principles of Natural Justice, ensuring that importers have a chance to justify self-assessment during the process.

On the other hand, the Revenue counsel referred to Circular No.9/2020-Cus. which stated that a personal hearing should only be provided if requested by the importer before proceeding with reassessment. The High Court carefully examined both circulars to determine the necessity of personal hearings during reassessment and left the question open for further consideration. The court noted that the writ petitioner had sought a personal hearing, raising the issue of whether personal hearing should be granted only upon request by the importer.

Regarding the availability of an alternate remedy under Section 128 of the Customs Act, the Revenue counsel highlighted exceptions recognized by the Supreme Court in Commercial Steel Limited case. The court acknowledged that while an alternate remedy exists, exceptions may apply in cases involving a breach of fundamental rights, violation of natural justice principles, excess of jurisdiction, or a challenge to the vires of the statute or delegated legislation.

In conclusion, the High Court set aside the impugned speaking orders in two writ petitions due to the lack of personal hearing, directing the third respondent to provide a personal hearing within a specified timeframe. The court clarified that no opinion was expressed on the merits of the case, focusing solely on the procedural aspect of personal hearing. The disposed writ petitions were closed, and the miscellaneous petitions were also disposed of accordingly, with no order as to costs.