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TMI Blog2017 (6) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... nth (7th) BE, i.e., BE No.2968893 dated 19.10.2015, the goods are described as "Enterprise Ethernet Switch". - In respect of all BEs, save and except BE No.2968893 dated 19.10.2015, the petitioner had paid duty under protest, which has been registered with the concerned authority. As a matter of fact, each of the letters of protest, which is on record, bears a stamp, to that effect. Only if, the petitioner's assessment was doubted, verification, examination or testing of goods would have taken place and thereafter, perhaps, led to reassessment of duty. The respondents, thus, took the stand that, it is only when re-assessment of duty is carried out under sub-section (4) of Section 17 of the Act, and, it is contrary to self-assessment carried out by an importer or an exporter (as the case may be), with respect to valuation of goods, classification, exemption or concession of duty availed consequent to any notification that an obligation is cast on the respondents to pass a speaking order, under sub-section (5) of Section 17 of the Act within the defined period. Whether there was a duty cast on the "proper officer" to verify, examine or test the subject goods, in view of the protest r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Right to Information Act, possibly via a third party. I would be referring to this aspect of the matter in the course of my narration. 5. Briefly, the facts and circumstances, which have led to the institution of the present petition, are as follows: 5.1. The petitioner, which is in the business of import and distribution of Telecommunication and IT Accessories, had imported products, known as, Ethernet Switches. 5.2. It is the petitioner's case that these Ethernet Switches are, essentially, used to connect personal computers, laptops and printers, within the defined area, such as an enterprise campus/building. 5.3. The petitioner, it appears, had been importing the Ethernet Switches over a period of time and claiming exemption from customs duty under notification No.24/2005 dated 01.03.2005. 6. Evidently, on 11.07.2014, the notification dated 01.03.2005 was amended, which, inter alia, excluded from the exemption regime, the "Carrier Ethernet Switches". With the issuance of the notification dated 11.07.2014, the Customs Authorities took the view that the Ethernet Switches, which were being cleared at 'nil' rate of duty under the unamended notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon perusal of the following communication: letter dated 15.10.2015, two (2) letters of even date, i.e.,19.10.2015, letter dated 10.2.2016 and finally, letter dated 11.3.2016. 9.2. It appears that, the attempt of the petitioner in having respondent No.2 to pass a speaking order has had no effect. 10. The only instance where there has been some movement is, with regard to, as indicated above, BE No.2968893 dated 19.10.2015, in which case, the subject goods have been sent for testing. 10.1. The petitioner, thus, being aggrieved by the inaction of the respondents, has preferred the instant Writ Petition. Submissions of counsels: 11. In this background, arguments, on behalf of the petitioner, were advanced by Mr.Murugappan, while submissions on behalf of the respondents were made by Mr.V.Sundareswaran. 12. The arguments of Mr.Murugappan can, broadly, be paraphrased as follows: 12.1. The subject goods, which are non-carrier Ethernet Switches, continue to be exempt from BCD and, are, therefore, ought to have been cleared without imposition of customs duty. 12.2. Since, the Customs Authorities insisted on payment of duty, prior to clearance, based on their reading of notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) iv) Karan Associates v. Commissioner of Customs (Import), Mumbai - 2009 (236) E.L.T. 23 (Bom) and v) HDFC Bank Limited V. Union of Inda - 2011 (271) ELT 175 (Ker.). 13. On the other hand, Mr.V.Sundareswaran submitted that the petitioner had imported "Network Switches", which fall under customs tariff heading (CTH) 85176290. The subject goods were exempted from BCD, pursuant to the provisions of notification dated 01.03.2005. With the issuance of notification dated 11.07.2014, exemption was denied to Carrier Ethernet Switch. 13.1 It was stated that the petitioner had imported network switches in 2014 under the cover of the aforementioned BEs. According to the learned counsel, the petitioner had, consequently, self-assessed the subject goods, i.e., network switches by classifying them under CTH 85176290. Consequently, the petitioner had paid BCD at the rate of 10%. Thus, all BEs, save and except BE 6500843 dated 21.08.2014, were processed through Risk Management System (RMS), based on self-assessment made by the petitioner, without any intervention by the respondents. 13.2. In so far as BE No.6500843, dated 21.08.2014, was concerned, it was referred for assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the record. 15. According to me, what clearly emerges is that, the petitioner has cleared goods via seven (7) BEs. In six (6) BEs, the goods are described as 'network switches', while in the seventh (7th) BE, i.e., BE No.2968893 dated 19.10.2015, the goods are described as "Enterprise Ethernet Switch". 15.1. In respect of all BEs, save and except BE No.2968893 dated 19.10.2015, the petitioner had paid duty under protest, which has been registered with the concerned authority. As a matter of fact, each of the letters of protest, which is on record, bears a stamp, to that effect. The fact that the letters of protest have been filed and registered with the customs authorities has not been disputed by the respondents before me. 16. The record, as indicated hereinabove, also shows that the petitioner has written a series of letters to respondent No.2 to pass a speaking order. Since, I have already made a reference to those letters, I intend not to repeat the dates once again. Suffice it to say, that these letters span between 15.10.2015 and 11.03.2016 (see paragraph No.9.1). 17. The record would show that only in one case, i.e., in respect of goods cleared under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cast on the "proper officer" to verify, examine or test the subject goods, in view of the protest registered by the petitioner. 19.1. For this purpose, one may have to bear the statute in mind, i.e. the provisions of Section 171, as it appeared prior to its amendment and thereafter, post amendment. 20. Prior to the amendment, sub-section (1) of Section 17 of the Act, inter alia, required that once an importer had entered imported goods under Section 46, it was incumbent on the proper officer to examine and test the goods in issue without undue delay. It was, only thereafter, that under sub-section (2) of Section 17, that duty leviable on such goods, save as otherwise, provided under Section 85 of the Act, was assessed. 20.1. To facilitate the assessment of duty, the proper officer could require the importer or any other person to produce any contract, progress note, policy of insurance or catalogue or other documents, whereby, the duty leviable could be ascertained. Information, if any, which was required for carrying out such exercise, which was within the power and possession of the importer or such other person could also be asked to be produced and/or to be furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The explanation only clarifies that where an Entry by the importer or exporter (as the case may be) has been made before the amendment, such imported or exported goods, shall continue to be governed by the unamended provisions of Section 17 of the Act. 22. Quite clearly, the amendment has been brought about to facilitate easy clearance of goods, whether imported or exported, without undue delay, being caused on account of the procedure envisaged for assessment of duty. 23. The unamended provisions of Section 17, at times, caused delay and hence, a statutory procedure was evolved to move to a "trust based customs control" regime. The same is exemplified by the circular dated 02.09.2011, on which, the respondents place reliance. Therefore, while amending Section 17, as discussed above, care has also been taken that the proper officer is not denuded of his power to verify the self-assessment made qua goods cleared, wherever it is felt necessary. 23.1. Sub-section (2) of Section 17 of the amended provision takes care of such a situation. 24. Therefore, the question, which arises for consideration, is that, when an importer or an exporter, in this case, the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only, when, no protest is lodged, could, one, perhaps, argue that no appeal would lie, as it would be a case of self-assessment without demur on the part of an importer or an exporter (as the case may be). However, much would depend on the facts and circumstances obtaining in a given case. A case in point is Aman Medical Products Limited V. Commissioner of Customs, Delhi, 2010 (250) ELT 30). In the said case, under unamended Section 17 and 27 of the Act, where, after the goods were cleared, the importer become aware of the fact that he was entitled to the benefit of an exemption notification. The Court allowed him to claim refund on the ground that duty had been borne by him , notwithstanding the fact that there was no appeal preferred by him. 27.1. Similarly, Courts have held that under the amended provisions of Section 17 and 27 of the Act, the importer / exporter could straightaway file for refund without having to file an appeal (see Micromax Informatics Limited V. Union of India and others, 2016 (335) ELT 446 (Del.). 27.2. The instant case is one, where, the appellant seeks issuance of a speaking order. Therefore, strictly, one is not dealing with a situation, which arose in ..... 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