9911796707
TMI Blog2016 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Smartlink Network Systems Ltd. (formerly known as D-Link (India) Ltd.) against 22 imports for which bills of entry were filed between 5th September 2006 and 13th February 2008. The claim had been rejected by the Assistant Commissioner (Refund) on the ground that the importer had not challenged the assessment, an essential pre-requisite laid down in the decision of the Hon'ble Supreme Court in Priya Blue Industries Ltd v. Commissioner of Customs (Prev.) [2004 (172) ELT 145 (SC)]. There does not appear to be any dispute that duty to the extent claimed had been discharged. It would appear that the original authority has premised his decision on the presumed acceptance of the assessment by the importer as a bar to claiming refund of duty. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prescribed. 9. It is evident from record that the Order-in-Original was passed rejecting the refund claim without issuing the show-cause notice and not giving any opportunity to be heard in person. It is well settled law that before passing a speaking order the show-cause notice should be issued and personal hearing should be held. There is clear violation of natural justice and the order is liable to be set aside on this count as well. 10. In view of above, I set aside the impugned order only to insure that the appellant s future refund claim in respect of the same Bills of Entry do not stand vitiated by a previous order , and further direct that in all assessment of impugned Bills of Entry speaking order must be issued within 3 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having considered the rival contentions, it may not be out of place to travel back in time to trace the genesis of the dispute. From the records, it appears that the importer had been classifying parts of electronic hardware under appropriate headings. Vide show cause notices dated 19th October 2005 and 3rd January 2006, Commissioner of Customs & Central Excise, Goa sought to levy duty on the parts as finished products imported in CKD form for the period from 2001 to 2005. During the pendency of this proceeding, further imports were levied to duty as finished products at higher rate which the importer paid under protest. For the bills of entry filed between September 2006 and February 2008, importer claimed refund vide application dated 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority to render a finding when the issue was yet to be decided upon by his superior authority. All in all, a tangled web, with the importer having no option but to pay the enhanced duty under protest . 9. There can be no doubt that the assessment was under challenge whether by Revenue or by the importer is not relevant. Lack of challenge to assessments of subsequent imports by separate appeals does not alter the factual matrix of the subjecting of this dispute in assessment to the appellate process. In view of the dropping of proceedings for the period between 2001 and 2005, the outcome of an appeal before Commissioner (Appeals), too, cannot be in doubt. The contents of a speaking order to be issued by the assessing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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