9911796707
TMI Blog2011 (7) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... date of communication of this order giving an opportunity of hearing to the appellant - Decided in favor of the assessee - CUSTA No. 1 of 2010 - - - Dated:- 26-7-2011 - BHATTACHARYA AND DR. SAMBUDDHA CHAKRABARTI JJ. Represented by: For Appellant : Mr.N. K. Chowdhury, Advocate For Respondent : Mr. N. C.Roychowdhury, with Mr. P.D.Mukherjee, Advocates In course of hearing of this appeal, we find that the following substantial question of law arises for determination, which was not formulated: In view of the fact that after removing the imported goods on payment of assessed duty, the appellant raised specific objection pointing out excess duty within 15 days of removal of the goods, whether a duty was cast upon the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty against tariff Heading No. 2804.6900 under Notification No.21/2007 which was supposed to be assessed to basic duty at the rate of 5% and customs education cess at the rate of 2% and 1% and additional duty of 4%. The appellant alleged that the customs authority charged CV duty @ 16% and respective education cess of 2% and 1% had been erroneously charged which was supposed to be exempted by giving effect to the Notification No.04/2006 being Sl.No.49. According to the appellant, this illegal act resulted in excess payment of Rs.6,98,103/- which was required to be refunded. The Assistant Commissioner of Customs rejected the application on the ground that there were several defects in the application. Being dissatisfied, the appellant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest for re-assessment of the Bill of Entry where the assessment was made wrongly by the Assessing Officer without allowing the benefit of exemption of countervailing duty in terms of Notification No. 4/2006-Cus dated 1/3/2006 and the payment of duty was made under protest. ii) Whether the Ld. Tribunal is justified in setting aside the Order of the Commissioner (Appeals) more particularly when there is no Lis between the parties and it was only a mere assessment of Bill of Entry and not Adjudication Order . At the time of hearing of this appeal, we found that a further substantial question of law is required to be framed in view of insertion of sub-Section 5 of Section 17 of the Customs Act and accordingly, we have further formulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty availed consequent to any notification therefor under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be .] On a plain reading of the aforesaid sub-Section, it appears that a duty is cast upon the proper officer to pass a speaking order within 15 days from the date of assessment of the bill of entry or the shipping bill, except the cases where the importer confirms his acceptance of the assessment in writing. In the case before us, the date of assessment of the bill of entry i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunication of this order giving an opportunity of hearing to the appellant. If the Assessing Officer finds substance in the protest lodged by the appellant, he will pass necessary order in favour of the appellant and in that event, the application for refund already filed by the appellant should be considered in accordance with law. If the Assistant Commissioner of Customs passes an order against the importer, he will be free to challenge that order in accordance with law and if he succeeds in the long run, he can claim refund in accordance with law. We make it clear that we have, otherwise, not gone into the question of entitlement of the refund or question whether the appellant has paid excess amount of duty and it is for the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
