M/S Ajwa Dry Fruit Impex vs. Union Of INDIA

The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India impugning the order in original dated 30.03.2023 in Exhibit P-1 passed by the 4th respondent Joint Commissioner (Appraising Import). 2. petitioner had imported items declared as ‘Wet Dates’ (Processed dates) vide five bill of entries mentioned in the order in original. The petitioner classified the imported goods under CTH 0804 1020 and assessed the same with duty @ BCD (Basic Custom Duty) 20% + SWS (Social Welfare Surcharge) 10% + IGST nil under Sl. No.51 of the Notification No.02/2017-Integrated tax (Rate) dated 28.06.2017. 3. On post clearance audit of the above mentioned bills of entry by Customs Receipt Audit (CRA), Customs House, Cochin, it was observed that the importer had imported dates having an assessable value of Rs.85,91,498/-. The IGST exemption claimed

The Learned Counsel for the petitioner submits that even if it is assessed, when the petitioner did not claim wrong exemption from payment of the IGST, the assessing authority under Section 28 of Customs Act is not empowered to assess the IGST and it is the authority under the IGST Act which could have proceeded with the matter. He therefore submits that the impugned order is without juri iction inasmuch as it has been passed by an authority which is not empowered to assess the tax/duty under the provisions of IGST Act.

The Learned Counsel for the petitioner also submits that under definition clause Sub-section (15) to Section 2, duty means the custom duty and it does not include the IGST tax/duty. He has also brought attention of this Court to the provision of Section 28 to submit that only in case of non payment/short payment revision of the Customs duty, the provisions of Section 28 of the Customs Act could be invoked and not for short payment/non payment or wrong exemption on evasion of IGST, Section 28 could have been invoked.

Mr. Ajoy P. B., Learned Counsel for the Revenue opposed the contention of the Learned Counsel for the petitioner that Sub- section (2) of Section 2 defines the assessment order. If the definition of assessment order is considered, it is not confined only to the Customs duty but, it is in respect of every duty, cess or tax which is applicable on the imported goods. Therefore, the contentions raised by the Learned Counsel for the petitioner that the impugned Exhibit P-1 assessment order passed under Section 28 is without juri iction has no substance. Learned Counsel for the respondents has also placed reliance on the case of Canon India Private Limited (M/s.) v. Commissioner of Customs (2021 KHC 6151) in support of his contention to say that the assessing authority under the provisions of Section 28 is empowered to assess evasion/non payment of not only Customs duty but, any other tax, cess levied or duty on which imported goods attract. Learned Counsel for the petitioner also submits that this is a question of classification of the goods and therefore instead of filing the writ

I have considered the submissions. This Court is required to consider whether the order impugned in Exhibit P-1 is without juri iction and void ab initio. Sub-section (2) to Section 2 of the Customs Act, 1962 defines the assessment order which reads as under; "assessment" means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, with reference to- (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force;

Sub-section (15) of Section 2 defines duty which means customs duty. Section 28 empowers the assessing authority to assess and recover the duties not levied, not paid, short levied or short paid or erroneously refunded. Section 28 therefore is not only in respect of duty which means customs duty but, it is in respect of duties which may be applicable on imported item/goods. Even otherwise, the assessment order is defined under Sub-section 2 of Section 2 of the Customs Act empowers the assessing authority to determine the dutiability of any goods and the amount of duty/tax, cess or any sum so payable under the Customs Act or WP(C) NO. 16393 OF 2023 8 Customs Tariff Act, 1975 (51 of 1975) or under any other law for the time being in force, with reference to exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under the said Act or under the Customs Tariff Act or under any other law for the time being in force.

The petitioner has claimed exemption from payment of IGST under the Notification No.02/2017-Integrated tax (Rate) dated 28.06.2017. Therefore, the competent authority is empowered to make assessment regarding claim of exemption from the IGST under Section 28 of the Act.

In the above view and circumstances of the case, I find no substance in the writ petition. This writ petition appears to be wholly misconceived, and it is hereby dismissed.

The petitioner may however have the scope to the remedy of appeal. If the petitioner files the appeal, the time period in prosecuting this writ petition shall be taken into account for condoning the delay in filing the appeal. DINESH KUMAR SINGH JUDGE Svn