HDFC BANK LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a Company carrying on banking business. They imported certain consignments of gold bars as per Exts. P1 and P2 Bills of Entry. However, contrary to their claims in the Bills of Entry the goods were assessed to a higher rate of duty. They cleared the goods by paying the higher duty assessed. In the bill of entry itself the petitioner registered their protest against such assessment, which was followed by Ext. P4 Letter of Protest also. Thereafter they requested for a speaking order to be passed by the assessing authority to enable them to challenge the assessment in appeal. Since the 3rd respondent did not pass a speaking order, the petitioner filed Ext. P5 letter dated 30-1-2008 before the 3rd respondent requesting for a speaking order to enable them to file a meaningful appeal against the assessment made. However, by letter dated 16-4-2008 the 3rd respondent informed them that since 1 years have lapsed since the clearance of the goods covered by the Bills of Entry and no efforts have been made by the petitioner for preferring the appeal before the Commissioner (Appeals), the petitioner may approach the Commission (Appeals) for appellate remedies subject to eligibility, and the Bill of Entry itself could be considered as an appealable order of assessment. The petitioner submitted Ext. P8 letter before the 3rd respondent stating that the stand of the 3rd respondent is not correct and as per law they are entitled to a speaking order against which they can file proper appeal under Section 128. The 3rd respondent having not replied to Ext. P8 they have filed this writ petition seeking the following relief:

(2.) A statement has been filed on behalf of the respondents by the Assistant Solicitor General of India. The primary contention in the statement is that the petitioner failed to approach the appellate authority within the period of limitation prescribed under the Act for filing an appeal. According to them once assessment has been made by the endorsement in the Bill of Entry, the bill of entry itself can be treated as an order against which the petitioner can file an appeal. Having not done so after more than two years, they cannot come and claim for a speaking order to enable them to file an appeal overcoming the limitation. The Assistant Solicitor General also relies on the decision of the Tribunal in Khemka Travels v. Collector of Customs,1992 57 ELT 458. It would go to show that the appeals under the Customs Act unaccompanied by the assessment order by the Bill of Entry is maintainable under Section 128.

(3.) I have considered the rival contentions in detail.