TaxTMI 
TaxTMI 
2017 (11) TMI 259
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....ed by the learned Counsel appearing for the Respondents based on the availability of statutory Appeal under Section 128 of the Customs Act, 1962 (for short "the said Act"). The learned Counsel appearing for the Petitioner relies upon a decision of the Division bench of this Court in the case of Zuari Agro Chemicals Ltd. Vs. Union of India 2014(307) E.L.T. 874 (Bombay) and submits that the issue is no more res integra. 5. With a view to appreciate the submissions canvassed across the bar, it will be necessary to make a brief reference to the facts of the case. 6. According to the case of the Petitioner, the said Company regularly imports polyester filament spin drawn yarn falling within the Chapter 54 of the Customs Tariff. The import ....
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....importer would require the following the principles of natural justice and including a speaking order justifying the variation made on the bill of entry? and (II) Whether a speaking order justifying the variation made on the bills of entry at the time of its finalization to the prejudice to the importer is a sine qua non to enable a filing of an appeal under the Customs Act, 1962 ("the Act")?" 10. In paragraph 14 of the said decision, the contention of the revenue is also noted that in view of the availability of an efficacious alternate remedy of an Appeal under Section 128, a Writ Petition should not be entertained. In paragraph 14, the said contention was negatived by the Division Bench of this Court, which reads thu....
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.... 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) ELT 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 of Section 17(5) of the....
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....n of Section 17(5) of the Act is that in this case the assessment was made provisional under Section 18(1) of the Act and were also being finalized under Section 18(2) of the Act. Therefore, it is submitted that Section 17(5) of the Act requiring an issuance of a speaking order will not apply. According to us any quasi judicial decision which could be subject matter of appeal would require reasons to be given. However, in this case in any view of the matter Section 18(2) of the Act at the relevant time read as "when the duty leviable on such goods is assessed finally in accordance with the Act then" certain consequences on finalization of assessment are set out. However, the final assessment of the goods which have been provisionally assess....
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.... issues raised in this petition as under: (I) Yes. The principles of natural justice including a speaking order in cases where provisionally assessed bills of entry are being finally assessed differently from that claimed by the importer; and (II) Yes. A speaking order is necessary wherever the bills of entry are finally assessed differently from that claimed by the importer." 13. In view of law laid down by the Division Bench, which is squarely applicable to the facts of the case in hand, in our view, the Petition must succeed and we pass the following order: (i) We set aside the final assessment made on the Bills of Entry (copies of which are annexed at Exh.A to the Petition) and in particular, Bills....