TaxTMI 
TaxTMI 
2022 (7) TMI 838
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.... steam coal of Indonesian origin totaling to 30720 metric ton and filed Bill of Entry No. 3415030 dated 28.09.2017 in the office of the respondent No.4 for customs clearance. 4.1 Respondent No.4-Deputy Commissioner of Customs provisionally assessed the said Bill of Entry and on payment of duty of Rs. 1,92,92,793/-, permitting the petitioner to clear the cargo out of customs charge order on 09.10.2017. 4.2 In June 2021, the authorized representatives of the petitioner-company came to know through ICEGATE portal (Indian Customs Electronic Gateway) that Bill of Entry No. 3415030 dated 28.09.2017 has been finally assessed by the respondent No.4 with further duty demand of Rs. 20,61,612/- with interest of Rs. 11,67,494/- resulting in the total demand of Rs. 32,29,106/- to be paid by the petitioner. 4.3 Respondent No.4 by letter dated 05.07.2021 informed the petitioner that the Bill of Entry was already finalized on 02.01.2019 and challan for the same was also generated on the same date for payment of differential duty. The respondent No.4 called upon the petitioner to make the payment of differential duty with applicable interest within seven days from the date of receipt of th....
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....xcess differential duty to be paid by the petitioner with interest. 5.4 Learned advocate Mr. Iyer further submitted that ex parte final assessment of the Bill of Entry in question is futile and therefore, alternative efficacious remedy available to file statutory appeal would not be adequate and efficacious remedy for the petitioner in view of the violation of the principles of natural justice by the respondentauthorities and as such, the impugned final assessment order may be quashed and set aside by remanding the matter back to the respondent No.4 to give an opportunity to the petitioner to make submission before passing the final assessment order as per the provisions of section 17(5) read with CBEC Circular No. 17 of 2011-Customs dated 08.04.2011. It was submitted that the respondent No.4 has not passed the speaking order as provided under section 17(5) of the Customs Act and hence, such order is required to be quashed and set aside. 5.5 In support of his submissions, learned advocate Mr. Iyer relied upon the decision of the Bombay High Court in case of Zuari Agro Chemicals Ltd vs. Union of India reported in 2014 (307) E.L.T. 874 wherein in similar facts, the Bombay High ....
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....e petitioner. 7. Considering the rival submissions made by the respective learned advocates, it is an undisputed fact that the petitioner imported 30720 metric ton steam coal and filed Bill of Entry No. 3415030 on 28.09.2017 which was assessed provisionally under section 18 of the Customs Act. It is also undisputed that the petitioner was never informed about the final assessment/re-assessment of the said Bill of Entry and for the first time, respondent No.4 by letter dated 05.07.2021 i.e. almost after two years and six months, informed the petitioner that the Bill of Entry No. 3415030 was finalized on 02.01.2019. Thus, the respondent No.4 has made final assessment/re-assessment of the said Bill of Entry ex parte in January 2019 without affording any personal hearing to the petitioner nor any reason for the variation being made to the said Bill of Entry as filed by the petitioner was communicated. It is also undisputed that no speaking order in support of the finalized Bill of Entry which has been varied has been issued to the petitioner at any point of time. 8. In case of Zuari Agro Chemicals Ltd (supra), Bombay High Court, while dealing with the similar issue, has held as u....
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.... no arbitrary orders are passed. Therefore, while finalizing the bill of entry for the purpose of assessment, it would be incumbent upon the Assessing Officer to inform the importer what variation he proposes to make to the Bills of entry as filed by the importer and the reasons for the same. This would give an opportunity to the importer to explain why the proposed variation in the bill of entry is uncalled for. If the explanation of the importer is accepted then the Bill of entry would be assessed in accordance with the claim made by the importer or even if not accepted, the authority would be required to give reasons in support of its conclusion. This would undoubtedly curtail/reduce unwarranted litigation. The above process of natural justice is only in compliance with elementary principles of Rule of law. The above process may not be elaborate but must meet the essence of fair play so that no person is left with a feeling of being a target of arbitrary and unfair behavior on the part of the authorities. In this case, the revenue does not dispute that while finalizing the assessment of the said bills of entry, value of imported MOP has been enhanced and the benefit of notificat....
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.... 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. Vs. 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 Act. The Court held that it is only 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 vs. Shukla Brothers Bombay 254 ELT 16 has observed that "Reasons are the soul of ord....
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....y availed consequent to any notification therefor under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be]. 18. Provisional assessment of duty.- (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in section 4 - (a) where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the assessment of duty on the imported goods or the export goods, as the case may be; or (b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test for the purpose of assessment of duty thereon; or (c) where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the d....