Commissioner Of Customs (Imports), ... vs M/S Kruti Stainless Steel Pvt. Ltd
- CitationAppeal No. C/86456/13
Ratio decidendi
The rule this decision rests on
Section 17(6) of the Customs Act, 1962 is only an enabling provision permitting the department to audit an importer's self-assessment or a proper officer's re-assessment; it does not prevent an assessee from claiming a justifiable right to a speaking order under Section 17(5), and it does not itself grant relief to an assessee who has been denied a speaking order. Where a Dy. Commissioner enhances the declared value of imported goods without passing a speaking order under Section 17(5), the appellate authority cannot dispose of the matter by relying on Section 17(6) as a substitute for that order, but must decide the appeal on its merits and, where the adjudicating authority has not yet done so, remand the case to the adjudicating authority to pass a speaking order on merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Application No. C/S/94616/13 in Appeal No. C/86456/13
(Arising out of Order-in-Appeal No. 782/2012(JNCH)/2012/IMP-644 dated 28.12.2012 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva).
For approval and signature:
Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)
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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen of the order?
4. Whether order is to be circulated to the Departmental : Yes authorities?
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Commissioner of Customs (Imports), Nhava Sheva Appellant
Vs.
M/s Kruti Stainless Steel Pvt. Ltd.
Respondent
Appearance:
Shri A.K. Singh, Addl. Commissioner (AR) for Appellant
None for Respondent
CORAM:
SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)
Date of Hearing: 05.03.2015
Date of Decision: 05.03.2015
ORDER NO.
Per: P.S. Pruthi
Revenue is in appeal against the impugned order of Commissioner (Appeals).
2. In this case, the concerned Dy. Commissioner (Appraising) enhanced the value of imported goods namely, cold roll stainless steel coil by 10% over and above the declared value. The value was enhanced after the goods were examined on first check basis. The appellant went in appeal against the order of enhancement of value. No speaking order was passed by the Dy. Commissioner in terms of Section 17(5) of the Customs Act, 1962. In appeal, the Commissioner (Appeals) ordered that if no speaking order is passed in terms of Section 17(5), then the provisions of Section 17(6) come into play where the proper office is required to audit the self-assessment done by the importer or re-assessment done by the proper officer without a speaking order.
3. Heard the learned AR and considered the submissions.
4. We find in this case that Section 17(6) is only an enabling statutory provision which allow the department to audit the assessment of duty of imported goods at the office or at the premises of the exporter or the importer. This provision in law does not prevent the assessee from seeking a justifiable right to get the speaking order. We have seen the grounds of appeal by Revenue, which admit that Section 17(6) cannot and does not extend any relief to the appellant and, therefore, Commissioner (Appeals) should have passed the order on merits. In these circumstances, we remand the case to the adjudicating authority to pass an order on merits. Reliance is also placed on decision of the Hon'ble High Court of Kolkata in the case of M/s Kothari Metal Vs. Union of India 2012-TIOL-11-HC-KOL-CUS.
5. Stay petition and appeal are disposed of accordingly.
(Dictated and pronounced in Court)
(Anil Choudhary) (P.S. Pruthi) Member (Judicial) Member (Technical)
Sinha
3
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