Cus - Once appellant protested matter, assessing officer is duty bound to pass speaking order on merits – Matter remanded: CESTAT
By TIOL News Service
MUMBAI, JAN 24, 2017: BRIEF facts: Appellant imported two machines, one by B/E dt. 25.9.2001 and the second vide B/E dt. 12.10.2001 and claimed exemption Notification No. 17/2001-Cus. As regards the first B/E, matter was adjudicated and the appeal traveled to the Tribunal when the benefit of exemption was allowed vide order dt. 5.9.2003. Department challenged the order but the Supreme Court vide order dt. 29.2.2012 upheld the order of the Tribunal and issue of eligibility of Notification attained finality.
Consequently, the appellant filed refund claim in r/o the first machine and which was sanctioned.
As regards the second machine, the appellant had on the date of filing of Bill of Entry paid the Customs duty under protest and a letter dt. 12.10.2001 to that effect was also filed with the Dy. Commissioner. Thereafter, on 25.10.2001, the customs authority issued an examination order. However, despite written request, no assessment order was issued.
Drawing support from the CESTAT order dt.5.9.2003, the appellant filed a refund claim in respect of the second bill of entry also.
However, the claim was rejected on 25.07.2005 on the ground that the appellant had not filed appeal against the assessed bill of entry, therefore,they are not entitled for the refund, in view of the judgments in the case of Flock (India) Pvt. Ltd. - 2002-TIOL-208-SC-CX and Priya Blue Industries Ltd. - 2004-TIOL-78-SC-CX .
The Commissioner(A) sided with the order of the original authority and, therefore, the appellant is before the CESTAT.
The appellant submitted that as far as the second bill of entry is concerned the appellant have paid the duty under protest, therefore, they have protested the denial of exemption;that the issue on merit was not in dispute in case of second bill of entry for the reason that identical issue in the appellant's own case has attained finality; that the contention of the lower authority that the refund is not maintainable in the light of judgment in the case of Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries Ltd. (supra) is not correct;that once the duty was paid under protest, the assessing authority is under obligation to pass a speaking order on the assessment of bill of entry, which the assessing officer has failed to do so.
The AR while reiterating the findings of the impugned order emphaised that no refund arises out of the assessed bill of entry unless and until the assessment of bill of entry is challenged by way of filing appeal before the Commissioner(A). A plethora of case laws was cited in support.
The Bench observed -
+ We find that the appellant right from filing of bill of entry have protested the denial of exemption notification and accordingly paid the duty under protest. However, the assessing authority has not passed any speaking order in connection with assessment of bill of entry.
+ In our view, once the appellant has protested the matter, the assessing officer is duty bound to pass a speaking order on the merit of the issue,therefore, before deciding the refund claim the assessing officer was supposed to pass a speaking order on the assessment of bill of entry. The appellants had made a specific request for an order of assessment vide their letter dt. 12.10.2001. Since no speaking order was passed, the matter of refund in the present case cannot be concluded.
+ In this fact, we are of the view that the adjudicating authority must pass a speaking order and thereafter process the refund application of the appellant.
In fine, the impugned order was set aside and the matter was remanded.
As the matter is of the year 2001, the adjudicating authority was directed to dispose of the matter within three months.
(See 2017-TIOL-218-CESTAT-MUM)
