TaxTMI 
TaxTMI 
2017 (10) TMI 572
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....he 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 Commissioner(Appeals) rejected the appeals as time barred. 2. Heard both sides and perused the appeal records. 3. The ld.Counsel for the appellant submitted that the Commissioner(Appeals) failed to appreciate that the appellant had not received the speaking order as required under section 17(5) of the Customs Act, 1962 till date and therefore there is no delay in filing of appeals. He relied upon the various decisions of the High Court and Tribunal. 4. The ld.A.R....
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.... Pvt.Ltd. v. Union of India [2011 (269) E.L.T. 327 (Kar.)] observed that appeal lies from assessment order even if it is not a speaking order, cannot be a reason to depart from procedure prescribed in section 17(5) of the Act, 1962. The relevant portion of the said decision is reproduced below:- "5. Though the learned standing counsel appearing for the respondents contended relying on the decision of the Central Excise, Customs, 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 ....
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....aking order in terms of Section 17(5) of the Act has been passed till date or communicated to the petitioner. In the view that I have taken it has to be necessarily held that it will be open to the petitioner to challenge the assessment made by the 3rd respondent by filing an appeal within the period of 60 days computed from the date on which a speaking order is passed under Section 17(5) of the Act." 8. In the case of Zuari Agro Chemicals Ltd. v. Union of India [2014 (307) E.L.T. 874 (Bom.)], the Hon'ble Bombay High Court observed that principle of natural justice should be followed and a speaking order be passed when Bills of Entry are finally assessed differently from that as claimed by the importer. The relevant portion of the said d....
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....e 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 speaking order in terms ....
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....low:- "5. Going by sub-section (5) when assessee objects to the assessment against their claim, the appropriate authority is duty bound to pass a speaking order. Admittedly the 3rd respondent has not done that. After not having performed their statutory duty, the 3rd respondent cannot be heard to contend that because the petitioner has not filed any appeal against the Bill of Entry itself, they cannot now claim for a speaking order for filing an appeal. The decision of the Tribunal referred to by the Assistant Solicitor General is also of no use in this regard, in so far as it does not maintain that the petitioner shall file an appeal against the Bill of Entry despite the non-passing of speaking order. In fact that decision only says tha....
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....ppeal against that order within the period of limitation of purpose prescribed under Section 128 from the date of communication of that order." 10. On the other hand, the ld.A.R. cited various decisions wherein it is held that the Commissioner(Appeals) has no discretion to condone the delay in filing appeal beyond the stipulated period. 11. I find that there is no dispute that the Commissioner(Appeals) has no power to condone the delay beyond the stipulated period. In the present case, the appellant filed the appeals before the Commissioner(Appeals) without the speaking order, as required to be passed under section 17(5) of the Act. On proper analysis of the above case laws, it is clear that the appellant should have filed the appeal ....