Case Law Details
Kanam Latex Industries Pvt. Ltd. Vs Commissioner of Customs (CESTAT Chennai)
The facts of the case are that the appellant had imported rubber gloves in bulk. The original authority had directed them to indicate MRP on the packets of imported rubber gloves and assessed the goods to additional duty of customs in terms of Central Excise Notification No. 49/2008-CE (NT) dated 24.12.2008. They cleared the goods on payment of duty. Aggrieved by the assessments done on both the Bills of Entry they have filed appeals before the Commissioner (Appeals), challenging the imposition of additional duty and seeking a direction to the Assistant Commissioner to refund the excess duty collected. They are aggrieved that the Learned Commissioner (Appeals) has rejected their appeals on the ground that the duty was not paid under protest nor the Bills of Entry have been assessed provisionally.
Appellant stated that their only prayer was to remand the matters to the original authority so that the issue can be decided on merits as they were aggrieved by the order of the proper officer directing them to discharged CVD in terms of Notification No. 49/2008-CE (NT) dated 24.12.2008 on the bulk goods imported by them. He stated that in case they have paid the duty under protest as stated by the Learned Commissioner (Appeals), then there was no legal necessity to file an appeal against the assessment order since in terms of sec. 17 read with sec. 27 of the Customs Act, 1962, the proper office will have to first vacate the protest by passing a speaking order which will then constitute a separate cause of action. The Commissioner (Appeals) has therefore erroneously interpreted the law governing the He further submitted that they have a very good case on merits and hence he humbly prayed that their appeals may be allowed by way of remand and the proper officer be directed to reassess the Bills of Entry and render justice.
CESTAT find that during the relevant time, after an importer files a Bill of Entry (BE) under section 46 of the Customs Act, 1962 (Act) for the goods imported by him, it shall as per section 17(1) be examined and tested by the proper officer. As per 17(2) after such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed by him. While as far as the description of the goods, quantity, value etc. are concerned, the importer is bound to state the truth in the BE, it is left to the proper officer to assess the goods to duty. Assessment means determination of the tax liability. While an importer can make a claim for exemption under any notification he feels is applicable to his goods, it is left to the proper officer to examine that claim, accept or reject it or to assess the goods to duty based on a provision not factored by the importer in the BE. In case the proper officer does not agree with the claim for exemption made by the importer or he seeks to impose duty not factored in the BE filed by the importer, he can resort to finalizing the assessment as provided for in section 17(5) of the Act. The same as it stood at the relevant time is reproduced below:
“(5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty 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.”
This being so it was for the Learned Commissioner ((Appeals) to examine whether the provisions of the said section had been satisfied. When he had found that the appellant was directed by the original authority to take steps for assessing the goods under Notification No. 49/2008-CE (NT) dated 24.12.2008, he should also have examined whether there was a written acceptance of that direction by the appellant/ importer, in the absence of which the proper officer should have passed a speaking order within fifteen days of the date of assessment of the BE. Without a written acceptance it could not have been concluded by the Learned Commissioner (Appeals), that since the appellants have cleared the goods on payment of duty as suggested by the proper officer, they have accepted the assessment of the BE. The facts that there was no written consent by the appellant and that they were before him in appeal should have been reason enough for him to remand the matter to the lower authority for issue of a speaking order in compliance with section 17(5) of the Act.
FULL TEXT OF THE CESTAT CHENNAI ORDER
We are here with dealing with two appeals of an similar nature filed by the same appellant M/s. Kanam Latex Industries (P) Ltd., The first appeal is against Order-in-Appeal No. 13/2013 dated 28.1.2013 pertaining to Bill of Entry No. 8480416 dated 14.11.2012 and the second appeal filed by them is against Order-in-Appeal No.14/2013 dated 28.1.2013 pertaining to Bill of Entry No. 8238836 dated 17.10.2012
2. The facts of the case are that the appellant had imported rubber gloves in bulk. The original authority had directed them to indicate MRP on the packets of imported rubber gloves and assessed the goods to additional duty of customs in terms of Central Excise Notification No. 49/2008-CE (NT) dated 24.12.2008. They cleared the goods on payment of duty. Aggrieved by the assessments done on both the Bills of Entry they have filed appeals before the Commissioner (Appeals), challenging the imposition of additional duty and seeking a direction to the Assistant Commissioner to refund the excess duty collected. They are aggrieved that the Learned Commissioner (Appeals) has rejected their appeals on the ground that the duty was not paid under protest nor the Bills of Entry have been assessed provisionally. The relevant portion of the Commissioner (Appeals) orders which are identical are reproduced below:-
“FINDINGS
4, I have carefully gone through the oral ! written submissions made by the appellants and provisions of law in this subject matter. The appellants have filed the Bill of Entry No. 8480416!2012 dated 14.11.2012 for the import of rubber gloves from Sri Lanka. The appellant was directed by the lower authority to indicate the MRP on the packets for purpose of assessment of additional customs duty in terms of Central Excise Notification No. 49/2008-CE (NT) dated 24.12.2008. Appellant cleared the goods on payment of duty as suggested b y the lower authority. It is seen that the appellants have accepted the assessment of the impugned Bill of Entry under the Notification No. 49/2008-CE (NT) dated 24.12.2008 and they have not disputed the fact before the lower authority. Further, the appellants have neither paid the duty under protest nor the Bill of Entry has been assessed provisionally. It is the responsibility of the appellants to claim such exemption at the time of filing Bills of Entry. They have not produced any records to prove that the appellants have been directed to pay the duty under Notification No. 49/2008-CE (NT) dated 24.12.2008 by the lower authority. The other arguments and case laws put forth by the appellants do not come for the rescue as they are no relevance to this issue. Further, the appellants have not contended the assessment order before the lower authority, hence the appeal filed by the appellants is liable for rejection.
5. In view of the above discussion, the following order is passed.
ORDER
6. The appeal is rejected ted and the assessment orders of the lower authority is upheld”
3. We have learned counsel Shri Hari Radhakrishnan on behalf of the appellant. He stated that their only prayer was to remand the matters to the original authority so that the issue can be decided on merits as they were aggrieved by the order of the proper officer directing them to discharged CVD in terms of Notification No. 49/2008-CE (NT) dated 24.12.2008 on the bulk goods imported by them. He stated that in case they have paid the duty under protest as stated by the Learned Commissioner (Appeals), then there was no legal necessity to file an appeal against the assessment order since in terms of sec. 17 read with sec. 27 of the Customs Act, 1962, the proper office will have to first vacate the protest by passing a speaking order which will then constitute a separate cause of action. The Commissioner (Appeals) has therefore erroneously interpreted the law governing the He further submitted that they have a very good case on merits and hence he humbly prayed that their appeals may be allowed by way of remand and the proper officer be directed to reassess the Bills of Entry and render justice.
4. The learned AR Smt. G. Anandalakshmi appeared for the Revenue and reiterated the points given in both the impugned orders.
5. We have gone through the appeals and all connected papers in this regard. We find that during the relevant time, after an importer files a Bill of Entry (BE) under section 46 of the Customs Act, 1962 (Act) for the goods imported by him, it shall as per section 17(1) be examined and tested by the proper officer. As per 17(2) after such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed by him. While as far as the description of the goods, quantity, value etc. are concerned, the importer is bound to state the truth in the BE, it is left to the proper officer to assess the goods to duty. Assessment means determination of the tax liability. While an importer can make a claim for exemption under any notification he feels is applicable to his goods, it is left to the proper officer to examine that claim, accept or reject it or to assess the goods to duty based on a provision not factored by the importer in the BE. In case the proper officer does not agree with the claim for exemption made by the importer or he seeks to impose duty not factored in the BE filed by the importer, he can resort to finalizing the assessment as provided for in section 17(5) of the Act. The same as it stood at the relevant time is reproduced below:
“(5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty 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.”
This being so it was for the Learned Commissioner ((Appeals) to examine whether the provisions of the said section had been satisfied. When he had found that the appellant was directed by the original authority to take steps for assessing the goods under Notification No. 49/2008-CE (NT) dated 24.12.2008, he should also have examined whether there was a written acceptance of that direction by the appellant/ importer, in the absence of which the proper officer should have passed a speaking order within fifteen days of the date of assessment of the BE. Without a written acceptance it could not have been concluded by the Learned Commissioner (Appeals), that since the appellants have cleared the goods on payment of duty as suggested by the proper officer, they have accepted the assessment of the BE. The facts that there was no written consent by the appellant and that they were before him in appeal should have been reason enough for him to remand the matter to the lower authority for issue of a speaking order in compliance with section 17(5) of the Act.
6. Accordingly, we set aside impugned orders No. 13/2013 and 14/2013 both dated 28.1.2013 and remand the matters back to the original authority to pass a speaking order as contemplated under section 17(5) of the Customs Act, 1962.
(Pronounced in open court on 17.3.2023)
