- (1.) THE subject matter of challenge in this appeal is a judgment and order dated 26th September, 2013 allowing the writ petition. Aggrieved by the order, the Commissioner of Customs has come up in appeal. The facts and circumstances of the case briefly stated are as follows: On 22nd June, 2011 Export Duty with respect to iron ores intended to be exported by the writ petitioner was assessed. The duty so assessed was duly paid on 23rd June, 2011 and thereafter the goods were promptly exported. The writ petitioner, by letters inter alia dated 23rd May, 2012, sought to assail the assessment alleging that - "In the present case Department did not accept the contracted price of US$ 155 CFR (US$ 126 DMT per FOB) and neither did they accept the DMT weight of 15165 metric tons or for the purpose of levy of Export Duty in terms of Customs notification. The Department took the WMT weight of 16850 mts for the purpose of calculation of duty arbitrarily at the back of the exporter without assigning any reasons and without giving any opportunity to the exporter for explaining the matter. On account of this wrong calculation, which is in complete violation of the exemption notification No. , dated 1 -3 -2011 we were forced to pay extra duty amounting to Rs. 27,56,146 (Rs. 26,22,559 for S/B. No. 013125, dated 22 -6 -2011, Rs. 1,33,587 for S/B. No. 013126, dated 22 -6 -2011." On the aforesaid basis, the writ petitioner prayed for the following reliefs: "In view of the above we humbly pray to your goodself to consider our case and allow the post -amendment of the Shipping Bill for the purpose of regularization of the export documents as we have already finalized our export transaction with our bank. We also request your goodself to issue a speaking order of assessment immediately in terms of Section 17(5) of Customs Act, 1962 or to amend the Shipping Bill in terms of Section 154 of Customs Act, 1962 and sanction the refund of the excess amount of duty of Rs. 27,56,146.00 realized by the Department without any authority of law."
(2.) THE writ petition which culminated in the order under challenge was filed on or about 13th December, 2012 praying for the following reliefs: "(a) A writ of and/or in the nature of Mandamus directing and commanding the respondents and each of them, their subordinates and officers to henceforth discharge their decision function under Section 153 of the Customs Act, 1962 by serving the speaking orders either by tendering the same to the petitioner by and/or send the same to the petitioner by registered post in respect of Shipping Bill Nos. 013125 and 123126 both dated June 22, 2011, Shipping Bill No. 5882632, dated October 18, 2011 and Shipping Bills No. 5923831 and 5923832 both dated October 20, 2011 in such time and manner as may be permitted by the said Hon'ble Court; (b) A writ of and/or in the nature of Certiorari directing and commanding the respondents to transmit all records to the said Hon'ble Court after certifying the same so that conscionable justice may be administered on the basis thereof;"
(3.) THE learned Trial Court disposed of the writ petition ex parte by the following order dated 26th September, 2013 which is under challenge: "Even at the second call, none appears for the respondents. Nevertheless, I have gone through their affidavit. I find that there is not much of a defence to the case of the writ petitioner. The only point attempted to be raised is that the writ petitioner could have availed of an alternative remedy of filing a departmental appeal. That is no ground at all. This principle is well known and reiterated in the Whirlpool case that lack of jurisdiction of an administrative or judicial authority is a ground for invoking the writ jurisdiction and not invoking any departmental remedy that may be available. Applying that principle, I allow this writ application by directing the second respondent to immediately furnish or cause to be furnished to the writ petitioner speaking order on the above reassessment within four weeks from the date of communication of this order." Mr. Choudhury, learned Advocate appearing for the writ petitioner, submitted that - "(a) By a circular dated 17th December, 2012, the Department has issued the following guidelines with respect to assessment of duty in respect of iron ores: "2. Hon'ble Supreme Court in the matter of Civil Appeal No. 7539 of 1995 in case of Union of India v. Gangadhar Narsingdas Aggarwal [ : 1997 (89) E.L.T. 19 (S.C.)] in order to arrive at the Iron (Fe) contents out of Iron Ore, had held that - - 'that is because the duty is relatable to weight and, therefore, once the iron content is determined keeping in mind the total weight, the percentage can be determined separating the iron contents from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron would fall for the purpose of charging duty....' 3. In light of the observation by the Apex Court that Export Duty is chargeable according to Fe contents, and to maintain uniformity all over the Custom houses, it is clarified that for the purpose of charging of Export Duty the assessment of Iron Ore for determination of Fe contents shall be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of impurities (inclusive of moisture) out of the total weight/gross weight to arrive at Net Fe contents. 4. In case of any difficulty in arriving at the net Fe content, assessment may be based on test result which directly determines the Fe contents. 5. Pending assessments on the issue, if any, should be finalized accordingly. 6. Difficulties, if any, faced in the implementation of this circular, may be immediately brought to the notice of the Board." (b) The self -assessment in this case made by the assessee both with regard to rate and the weight was not accepted by the Department and they proceeded to make reassessment under sub -section (4) of Section 17 of the Customs Act, 1962. In doing so, the Department enhanced the liability on account of duty payable by the writ petitioner without assigning any reasons. He contended that law enjoins the authority to pass a speaking order on such reassessment unless the importer or exporter, as the case may be, confirms his acceptance of the order in writing. No such confirmation in writing was ever issued by the writ petitioner. Therefore, the liability on the part of the Department to pass a speaking order, continued to remain which they failed to discharge. The learned Trial Court has merely directed the authorities to furnish a speaking order for the reassessment. In support of his submission he drew our attention to a judgment of this Court in the case of Kothari Metals Ltd. v. Union of India reported in, 2011 (274) E.L.T. 488 (Cal.) wherein the following views were taken: "17. Thus, the Assistant Commissioner of Customs refused to exercise jurisdiction vested in him by law by not passing any speaking order in terms of sub -section (5) of Section 17 of the Act and so long that order was not passed, no question of acceptance of the order of assessment arose. 18. Therefore, the Tribunal below committed substantial error of law in holding that the appellant had accepted the order of assessment and the same had attained finality. We have already pointed out that in spite of specific protest lodged by the appellant within 15 days from the date of assessment of the bill of entry, no order in terms of sub -section (5) of Section 17 of the Act has been passed and as such, the Tribunal erred in law in rejecting the claim of refund. 19. In such circumstances, we are of the view that it is a fit case where the orders passed by all the authorities below should be set aside and the Assistant Commissioner of Customs should be asked to pass specific order on the basis of complaint lodged by the appellant in terms of sub -section (5) of Section 17 of the Act within one month from the date of communication of this order giving an opportunity of hearing to the appellant. If the Assessing Officer finds substance in the protest lodged by the appellant, he will pass necessary order in favour of the appellant and in that event, the application for refund already filed by the appellant should be considered in accordance with law." ;