9911796707
TMI Blog2017 (11) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... essment of duty made payable by the Petitioner is in gross breach of the principles of natural justice - Held that: - the decision in the case of Zuari Agro Chemicals Limited Versus Union of India And Others [2014 (2) TMI 552 - BOMBAY HIGH COURT], referred, where it was held that the final assessment of the goods which have been provisionally assessed has to be in terms of Section 17 of the Act. This is so as Section 18(2) of the Act itself does not provide for finalization of assessment but merely states the action to be taken by the Assessing Officer consequent to the finalization of provisionally assessed bill of entry under Section 17 of the Act. The final assessment made on the Bills of Entry (copies of which are annexed at Exh.A to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made through Jawaharlal Nehru Port Trust in Nhava Sheva, District Raigad. 7. The challenge is to the exparte assessment orders incorporated in the Bills of Entry dated 5 April 2016, 16 April 2016, 28 April 2016, 28 May 2016 and 30 May 2016. The contention of the Petitioner is that the act of unilateral loading on invoices value is contrary to the law and in particular, the Circular dated 8 April 2011. It is contended that the assessment of duty made payable by the Petitioner is in gross breach of the principles of natural justice. 8. The learned Counsel appearing for the Petitioner submitted that as held by the Division Bench in case of Zuari Agro Chemicals Ltd. (supra), a direction may be issued to pass a speaking order. As stated e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue that this Court should not entertain this petition as an alternative remedy of an appeal is available under Section 128 of the Act and the petitioner has chosen not to avail it. The said bills of entry were finalized in December 2011. The petitioner was informed of the same in May 2012. The petitioner accepted it as is evident from not having filed an appeal to the Commissioner of Customs (Appeal) or any other authority. An Appeal under Section 128 of the Act to be an efficacious appeal must be from an order with reasons. It is for this reason that Section 17(5) of the Act itself provides that on a bill of entry being assessed finally in a manner contrary to the claim of the importer, then within 15 days of making the final asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on passing of a speaking order that the period for filing an appeal under Section 128 of the Act commences. As the Apex Court in Asstt. Commissioner, Commercial Tax Department v. Shukla & Brothers Bombay 2010 (254) E.L.T. 6 = 2011(22) S.T.R. 105 (S.C.) has observed that "Reasons are the soul of orders. Nonrecording of reasons could lead to duel infirmities, firstly, it may cause prejudice to the affected party and secondly more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements" Further it quotes from H.W.R. Wade's book Administrative Law, 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18(2) of the Act itself does not provide for finalization of assessment but merely states the action to be taken by the Assessing Officer consequent to the finalization of provisionally assessed bill of entry under Section 17 of the Act. Thus the objection of the revenue is unsustainable." 12. The directions issued by the Division Bench and the findings in paragraphs 16 and 17 read thus : " 16. In the above view of the matter, we set aside the final assessments made on the said bills of entry in December 2010. The consequent demand notices and further notice calling upon the petitioners to pay an amount of ₹ 17.51 crores are also set aside. We direct that a fresh order of finalization of assessment of the said bills of entry be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment of the Bills of Entry be made by the appropriate officer of the Department of Customs after following the principles of natural justice in the light of the directions issued in paragraph 16 of the decision of this Court in the case of Zuari Agro Chemicals Ltd. (supra); (iii)As directed in the case of Zuari Agro Chemicals Ltd. (supra), a reasoned order shall be passed within 15 days from the date on which this order is uploaded; (iv) After the reasoned order is passed, if the Petitioner is aggrieved by the final assessment order, it will be open for the Petitioner to take recourse to Section 128 of the Customs Act, 1962; (v) All contentions on merits are kept open; (vi) Rule is made absolute with no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
