TaxTMI 
TaxTMI 
2011 (7) TMI 678
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....oods, whether a duty was cast upon the Assistant Commissioner of Custom to pass a speaking order in terms of sub-Section 5 of Section 17 of the Customs Act and for not passing such order, whether it can be said that the order of assessment had not become final." Later This appeal under Section 130 (1) of the Customs Act, 1962 is at the instance of an importer and is directed against an order dated 27th July, 2009 passed by Customs, Excise and Service Tax Appellate Tribunal, Eastern Regional Bench, Kolkata under Customs Appeal no.108 of 2009 [Commissioner of Customs (Ports) vs. M/s. Kothari Metals Limited] thereby allowing the appeal filed by the Customs authorities and setting aside the order passed by the Commissioner of Customs (Appeals....
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....eing dissatisfied, the appellant preferred an appeal before the Commissioner of Customs (Appeals) and the said authority set aside the order of the Assistant Commissioner of Customs holding that shortcoming in the refund-claim pointed out by the Assistant Commissioner of Customs was procedural in nature and those could be rectified by asking the appellant to clarify those shortcoming. The Commissioner of Customs (Appeals), thus, directed the Assistant Commissioner of Customs to consider the application for refund on merit and to dispose of the same in accordance with law. Being dissatisfied, the Revenue preferred an appeal before the Tribunal below and the said Tribunal by the order impugned herein, set aside the order of the Commissioner....
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.... we have further formulated the following substantial question of law: " In view of the fact that after removing the imported goods on payment of assessed duty, the appellant raised specific objection pointing out excess duty within 15 days of removal of the goods, whether a duty was cast upon the Assistant Commissioner of Custom to pass a speaking order in terms of sub-Section 5 of Section 17 of the Customs Act and for not passing such order, whether it can be said that the order of assessment had not become final." After hearing the learned counsel for the parties and after going through the materials on record, we find that the appellant, on payment of the assessed amount, removed the imported goods on 20th December, 2007; however, on ....
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....e bill of entry is 12th December, 2007 and the said 15 days expires on 27th December, 2007. No material has been produced before us showing that within 15 days, the appellant confirmed the original assessment on the basis of the bill of entry in writing; on the other hand, it appears that the appellant specifically raised objection before the customs authority on the 15th day from 12th December, 2007. 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. Therefore, the Tribunal below committed substantial error of ....