M/S. Southern Carbon And Chemicals vs. The Assistant Commissioner Of Customs (Appraising Imports)
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The petitioner, M/s. Southern Carbon and Chemicals, imported goods classified as 'Anthracite-Everzit' under customs tariff item 27011100. They paid customs duty, SwS, and IGST based on this classification. Subsequently, a CRCL test report dated 26.12.2022 indicated the sample was 'activated carbon'. The respondent, Assistant Commissioner of Customs, issued a show cause notice proposing a short levy of duty amounting to Rs. 4,09,798/-. The petitioner replied, and the respondent passed an order in original dated 18.7.2023, upholding the proposed short levy. The petitioner's requests for re-testing the samples were declined by the respondent, citing the infeasibility of drawing samples after clearance.
Held
The Court did not record any finding on the merits of the case. It held that a statutory remedy of appeal is available to the petitioner under the Indian Customs Act, 1962. Therefore, the writ petition was disposed of with liberty to the petitioner to file an appeal before the appellate authority within fifteen days from the date of the order. The appellate authority was directed to consider the appeal on its merits, without being influenced by any question of limitation. The Court explicitly avoided deciding the substantive issues raised by the petitioner regarding the CRCL test report and the denial of re-testing.
Key Issues
1. Whether the impugned order dated 18.7.2023, passed by the Assistant Commissioner of Customs, is sustainable in law, considering the petitioner's challenge to the CRCL test report and the denial of re-testing requests? (Mixed question of law and fact) Petitioner's contentions: The petitioner argued that the CRCL test report was not challenged by them at the time of import and that their subsequent requests for re-testing were wrongly declined by the respondent. They contended that the denial of re-testing prevented them from substantiating their case regarding the correct classification of the imported goods. Revenue's contentions: The respondent argued that the petitioner had supported the CRCL test report by not challenging it at the time of import and that re-testing was not feasible after the consignment was cleared. The respondent relied on the CRCL test report to justify the short levy of duty.
Sections Cited
Indian Customs Act, 1962
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
J U D G M E N T The present writ petition has been instituted against the order in original dated 18.7.2023, Ext.P14, passed by the Assistant Commissioner of Customs (Appraising Import), the respondent herein.
The petitioner had imported goods, Anthracite-Everzit' vide two Bills of Entry Nos.8489587 dated 30.4.2022 and 3715999 dated 13.12.2022. The total value for the imported items was Rs.18,98,974/-. The petitioner had classified the said items under the customs tariff item 27011100 and paid customs duty @ BCD 1%, SWS 10% and IGST 5%. The total duty paid by the petitioner was Rs.1,16,882/-. After import and clearance granted by the Customs authorities, it was noticed that as per CRCL's test report dated 26.12.2022 in respect of bill of entry No.3715999 dated 13.12.2022, the sample was said to be “activated carbon”. The petitioner was issued show cause notice dated 23.5.2023 proposing to WP(C) NO. 25774 OF 2023. 3 short levy of duty of Rs.4,09,798/-. The petitioner filed reply to the said show cause notice and it was adjudicated by order in original dated 18.7.2023, Ext.P14, impugned in the present writ petition.
In the impugned order, it has been held that since the petitioner had not challenged the CRCL's test report, the petitioner himself supported the said CRCL's test report in esanchit vide IRN No.2022123000007270 dated 30.12.2022 at the time of import and therefore, the petitioner's contention with regard to the said test report is not correct. The petitioner vide letters dated 12.6.2023 and 13.6.2023 had requested for re- testing of the samples of the imported items. However, the said requests had been declined by the respondent stating that it would not be possible to draw samples of the imported items for the purpose of test, as while the consignment was cleared, it would not be feasible to send samples as per the prescribed procedure for re-testing.
WP(C) NO. 25774 OF 2023. 4
Be that as it may, this Court would not like to record its finding on the merit of the case as there is a statutory remedy of appeal available to the petitioner. Therefore, the present writ petition is disposed of with liberty to the petitioner to file appeal under the provisions of the Indian Customs Act, 1962 before the appellate authority against the impugned assessment order. If such an appeal is filed within a period of fifteen days from today, the appellate authority shall consider the appeal on its merits, without going into the question of limitation, if any. With the aforesaid liberty, the present writ petition would stand finally disposed of. Pending interlocutory applications, if any, in the writ petition would stand dismissed. DINESH KUMAR SINGH
JUDGE jg
WP(C) NO. 25774 OF 2023. 5
Appendix — schedule of exhibits
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.