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TMI Blog2014 (6) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Choudhury, is likely to give rise to absurd results. When the order, passed by the proper officer reassessing duty under sub-section (4) of Section 17, has been accepted and acted upon, and no appeal has been preferred within the prescribed period, there can be little doubt that the order attained finality. Even in such a case, the proper officer is still under a duty to deliver his judgment as indicated above. - the order under challenge set aside. Proper officer directed to deliver the judgment within four weeks disclosing reasons for the order of reassessment passed under sub-section (4) of Section 17 on 22nd June, 2011 and other similar orders in connection with five other or concerned shipping bills. - G.A. No. 6 of 2014 and A.P.O.T. No. 598 of 2013 - - - Dated:- 18-6-2014 - Girish Chandra Gupta and Sudip Ahluwalia, JJ. Shri S.B. Saraf with K.K. Maiti, Advocates, for the Appellant. Shri R.K. Choudhury with Pratyush Chatterjee, Advocates, for the Respondent. ORDER The subject matter of challenge in this appeal is a judgment and order dated 26th September, 2013 allowing the writ petition. 2. Aggrieved by the order, the Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by registered post in respect of Shipping Bill Nos. 013125 and 123126 both dated June 22, 2011, Shipping Bill No. 5882632, dated October 18, 2011 and Shipping Bills No. 5923831 and 5923832 both dated October 20, 2011 in such time and manner as may be permitted by the said Hon ble Court; (b) A writ of and/or in the nature of Certiorari directing and commanding the respondents to transmit all records to the said Hon ble Court after certifying the same so that conscionable justice may be administered on the basis thereof; 4. The learned Trial Court disposed of the writ petition ex parte by the following order dated 26th September, 2013 which is under challenge : Even at the second call, none appears for the respondents. Nevertheless, I have gone through their affidavit. I find that there is not much of a defence to the case of the writ petitioner. The only point attempted to be raised is that the writ petitioner could have availed of an alternative remedy of filing a departmental appeal. That is no ground at all. This principle is well known and reiterated in the Whirlpool case that lack of jurisdiction of an administrative or judicial authority is a ground for invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioner without assigning any reasons. He contended that law enjoins the authority to pass a speaking order on such reassessment unless the importer or exporter, as the case may be, confirms his acceptance of the order in writing. No such confirmation in writing was ever issued by the writ petitioner. Therefore, the liability on the part of the Department to pass a speaking order, continued to remain which they failed to discharge. The learned Trial Court has merely directed the authorities to furnish a speaking order for the reassessment. In support of his submission he drew our attention to a judgment of this Court in the case of Kothari Metals Ltd. v. Union of India reported in 2011 (274) E.L.T. 488 (Cal.) wherein the following views were taken : 17. Thus, the Assistant Commissioner of Customs refused to exercise jurisdiction vested in him by law by not passing any speaking order in terms of sub-section (5) of Section 17 of the Act and so long that order was not passed, no question of acceptance of the order of assessment arose. 18. Therefore, the Tribunal below committed substantial error of law in holding that the appellant had accepted the order of assessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays from the date of communication of the order. Since the duty was paid by the writ petitioner on 23rd June, 2011, there can be little doubt that the order was communicated on 22nd June, 2011 or at any rate on 23rd June, 2011. The period of limitation for an appeal commenced on 23rd June, 2011. 9. The writ petitioner could have availed himself of the benefit of the proviso to sub-section (1) of Section 128 of the Customs Act, 1962 for the purpose of obtaining an extension of 30 days. By 23rd September, 2011 the right to prefer an appeal came to an end. The order thus attained finality. The order was assailed for the first time by letters dated 23rd May, 2012. The writ petition was thereafter filed. He contended that so long as the order dated 22nd June, 2011 is not set aside, there can be no question of passing a second assessment order, speaking or otherwise. 10. The judgment, cited by Mr. Choudhury, learned Advocate appearing for the writ petitioner, in the case of Kothari Metals Ltd. v. Union of India - 2011 (274) E.L.T. 488 (Cal.) has no application to the facts and circumstances of the instant case. What had happened in that case was that the assessment was made on 12th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said reassessment in writing, the proper officer shall pass a speaking order on the reassessment within fifteen days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. 14. From a plain reading of sub-sections (4) and (5), it appears that reassessment simply means an assessment where the self-assessment made by the assessee is not accepted by the proper officer. The proper officer is obliged to pass a speaking order in cases other than those where the importer or exporter, as the case may be, has confirmed his acceptance of the reassessment in writing. It is, as such, open to the proper officer to pass an order of assessment without reasons. The proper officer has, however, to take care that he has reasons for the order which may be passed in exercise of power under sub-section (4) of Section 17. He is required to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater point of time which is a safeguard against a capricious exercise of power. When the Legislature provided for a speaking order in sub-section (5), it did not mean anything more than that the proper officer shall deliver his judgment disclosing reasons in support of his order, which he already has passed. When the order, passed by the proper officer reassessing duty under sub-section (4) of Section 17, has been accepted and acted upon, and no appeal has been preferred within the prescribed period, there can be little doubt that the order attained finality. Even in such a case, the proper officer is still under a duty to deliver his judgment as indicated above. This is all that the Legislature intended while providing for a speaking order. We are supported in our view by a decision of the Apex Court in the case of Vidyacharan Shukla v. Khubchand Baghel, reported in AIR 1964 SC 1099 wherein Their Lordships opined that : It is open to it (Election Tribunal) to issue two documents - one embodying the reasons for the decision and the other, the formal expression of its decision : the former will be its judgment and the latter, its order. It may issue both in the same document in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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