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TMI Blog2017 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry under the provisions of the Customs Act, 1962. The assessing officer would pass the speaking order as required under section 17(5) of the Customs Act, 1962 forthwith and thereafter the appellant is at liberty to challenge the re-assessment made by the assessing officer in the Bills of Entry - appeal allowed - decided in favor of appellant. - Appeal Nos. C/76013-76049/17 - Order No. FO/A/77469-77505/2017 - Dated:- 5-8-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri Sudhir Kr. Mehta, Advocate for the Appellant Shri S. K. Naskar, AC(AR) for the Revenue ORDER Per Shri P. K. Choudhary The facts of the case in brief are that the appellant carried on business of import of defective tinplate, misprinted sheets amongst others. The Assessing Officer reassessed the Bills of Entry in respect of importation of defective tinplates, misprinted sheets and enhanced the value of the goods and had not passed a speaking order on the reassessment within the stipulated period under the provisions of Section 17(5) of the Customs Act, 1962. The appellant filed appeals before the Commissioner(Appeals) against the Bills of Entry. By the impugned order, the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Service Tax Appellate Tribunal in Max India Limited v. Commissioner of Customs (ICD), New Delhi, 2005 (192) E.L.T. 246, that an appeal would lie from the assessment order passed by the 3rd respondent even if the order is not a speaking order, I am of the opinion that, that cannot be a reason to decline to act in terms of Section 17(5) of the Act. The procedure prescribed in Section 17(5) can be departed from only in a case where the importer or the exporter, as the case may be, confirms in writing his acceptance of the assessment made by the assessing officer. Section 17(5) was introduced with effect from 13-7-2006, the date on which Act 29 of 2006 came into force. The decision relied on by the learned standing counsel appearing for the respondents was delivered on 31-3-2006, prior to the introduction of Section 17(5) of the Act. In view of the amendment brought about by Act 29 of 2006 the decision relied on by the learned standing counsel can have no application. In such circumstances as the dispute is regarding the value of the goods and the importer has not accepted in writing the assessment of the 3rd respondent I am of the opinion that the 3rd respondent was bound to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of reasons being mentioned on the said bills of entry itself or by issue of a separate communication containing the reasons for the same an importer would be at loss to the manner in which the same could be challenged. In fact, in such cases an appeal to the appellate authority would be futile as it would be impossible for the petitioners to contend why the enhancement of value done by the Customs Department is unjustified and/or bad in law nor would it be possible for the appellate authority to decide on the merits of the final assessment of the bills of entry. Therefore, there has been failure on the part of the Customs Department to carry out its mandatory obligation as provided under Section 17(5) of the Act. It is only when a speaking order is issued to the importer that an efficacious appeal can be made to the Commissioner of Customs (Appeals) under Section 128 of the Act. The petitioners have correctly relied upon the decision of the Kerala High Court in HDFC Bank Ltd. v. Union of India - 2011 (271) E.L.T. 175 wherein it has been held that where an assessee objects to the assessment being made contrary to its claim, the Assessing Officer is obliged to issue a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be maintainable. I am of opinion that in view of the categoric provision under Section 17(5) it was mandatory on the part of the 3rd respondent to pass a speaking order, in so far as in the Bill of Entry itself the petitioner has registered against such assessment which was followed by Ext. P4. Therefore, the petitioner was perfectly justified in finding for speaking order without which the petitioner cannot know the reasons for the assessment made by the 3rd respondent. In fact the limitation for filing appeal under Section 128 would start only from the date of communication of the decision or order to the petitioner. Clearly Bill of Entry is not a decision or order contemplated under Section 128. It can only be an order under Section 17(5) which has to be a speaking order. When admittedly there is no speaking order passed by the 3rd respondent in this case, the petitioner is entitled to get a speaking order against which he can file an appeal within the period prescribed under Section 128 from the date of communication of that order to them. Therefore, this writ petition is allowed, the 3rd respondent is directed to pass his speaking order in respect of the import in question a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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