WOODSTRUCK FURNITURE PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is a private limited company engaged in the business of import of furniture from various South Asian countries and its sale within India. The petitioner imported various items of furniture as per Ext. P1 bill of entry for sale within India. Along with the bill of entry the petitioner had filed copies of the invoice and the packing list issued by the foreign supplier to corroborate the declaration made in the bill of entry with regard to the description of the goods as also the transaction value in respect of the goods imported. Copies of the invoice and packing list issued by foreign supplier are on record as Exts. P2 and P3. For the purpose of levying customs duty on the goods described in Ext. P1 bill of entry, the respondents added a load factor of 28.37% on the invoice value of U.S. $ 12,352 and on that basis the total assessable value of the consignment was worked out at Rs. 8,18,172/ - and the sum of Rs. 2,19,667/ - was assessed as customs duty. It is the case of the petitioner that instead of passing a reasoned order, the assessment was made on the original of the bill of entry and in view of the urgency it paid the duty of Rs. 2,19,667/ - on 14 -5 -2010 itself and obtained Ext. P5 out of charge order. The petitioner submits that thereafter it had sent Ext. P6 letter to the 3rd respondent requesting him to pass a reasoned order setting out the reason why a load factor of 28.37% was added to the invoice value for the purpose of levy of customs duty. This writ petition was thereafter filed on 13 -9 -2010 seeking the following reliefs : -

(2.) THE main contention raised by the petitioner is that in view of Section 17(5) of the Customs Act 1962 (hereinafter referred to as 'the Act' for short) except in cases where the importer or the exporter, as the case may be, has not confirmed in writing his acceptance of the assessment made by the Customs authorities as regards the valuation of the goods, classification or exemption or concessions of duty availed consequent to any notification issued under the Act, the assessing officer has to pass a speaking order within 15 days from the date of assessment of the bill of entry or the shipping bill, as the case may be. The petitioner contends that as it has not confirmed in writing the assessment made by the 3rd respondent, the 3rd respondent was bound to pass a speaking order within 15 days from 10 -5 -2010, the date on which the assessment was made. It is contended that in view of the failure of the 3rd respondent to act in terms of Section 17(5) of the Act, the petitioner has been deprived of the right to file an appeal under Section 128 thereof.

(3.) I heard Sri A.K. Jayasankar Nambiar, learned standing counsel appearing for the petitioner and Sri. Thomas Mathew Nellimoottil, learned standing counsel appearing for the Central Board of Excise and Customs. I have also gone through the pleadings and the materials on record. The applicability of Section 17(5) of the Act to the goods imported by the petitioner, more particularly described in Ext. P1 bill of entry, Ext. P2 invoice and Ext. P3 packing list is not in dispute. It is also not in dispute that the petitioner has not accepted in writing the assessment made by the 3rd respondent on the first page of Ext. P1 bill of entry. It is also not in dispute that assessment of duty was made in the instant case applying Section 17 of the Act. Sub -section (5) of Section 17 of the Act stipulates that 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 therefore issued under the 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. The dispute raised by the petitioner in the instant case is as regards the valuation of the goods imported by him. While the petitioner contends that the value declared by him based on Ext.P3 price list furnished by the supplier (exporter) represents the correct value of the goods, the contention of the Department is that the value assessed by the Department represents the correct value of the goods. Ext.P1 bill of entry discloses that the value of the goods imported was assessed by adding a load factor of 28.37% to the transaction value. As noticed earlier, the respondents have no case that the petitioner has confirmed the assessment of the 3rd respondent in writing. In such circumstances as the dispute is regarding the valuation of the goods imported by the petitioner and the petitioner has not confirmed in writing the assessment made by the 3rd respondent on the original of Ext.P1 bill of entry, it was obligatory for the 3rd respondent to pass a speaking order within 15 days from the date of assessment, namely 15 days from 10 -5 -2010. Such an order has not admittedly been passed.