2017 Taxo.online 34
W.P.No.25415 of 2017 & W.M.P.No.26857 of 2017 dated 05.10.2017
M/s. Jaap Auto Distributors
The Assistant Commissioner of Customs
2017
GST
Central Goods & Services Tax Act, 2017
ection 17(5) of Customs, Section 2(91) of CGST
01/2017-Integrated Tax (Rate)
T. S. Sivagnanam, Justice
In favour of revenue
High Court
Madras
Challenge to order-in-original – Petitioner contention that impugned order is wholly without jurisdiction is to be done by a proper officer in terms of Section 2(91) of CGST, or an adjudicating authority under Section 2(4) of CGST, respondent is neither of them – Respondent submitted that Petitioner requested to pass a speaking order that afforded them an opportunity of personal hearing. Petitioner attended and contested classification adopted by the respondent for the imported goods (tiller blades). Petitioner did not dispute classification as under entry 84329010 and submitted that IGST should be 12%. Respondents fixing the rate 18% – Petitioner argued ground of lack of jurisdiction before this Court for the first time – Held: – Writ Petition is dismissed as not maintainable, leaving open to petitioner to file an appeal before the appellate authority and if filed, the appellate authority, while computing limitation shall exclude the period from 20.09.2017 till the receipt of this order.
Represented by: –
Petitioner: – Dr. S. Krishnanadh
Respondent: – Mr. A. P. Srinivasa
Order: –
Heard Dr.S.Krishnanadh, learned counsel for the petitioner
and Mr.A.P.Srinivas, learned Senior standing counsel for the
respondent.
- The petitioner has challenged an Order-in-Original, dated
24.08.2017, issued under Section 17(5) of the Customs Act, 1962. By
the impugned order, the respondent has denied the petitioner’s claim
for the benefit of a notification with respect to description of the
goods under serial No.196 of Schedule II of notification 1/2017-
integrated Tax (Rate), dated 28.06.2017, (as amended) at 12% and
accordingly, ordered that the correct serial number to be claimed for
IGST is serial number 453 Schedule III of the notification at 18%.
Accordingly, the respondent ordered re-assessment of the bill of entry
No.2544081, dated 21.07.2017. As against the impugned order, the
petitioner has an alternate remedy of filing an appeal before the
Commissioner of Customs (Appeals), Chennai, under Section 128(1)
of the Customs Act, 1962. The petitioner has not availed such
remedy and is before this Court challenging the impugned order. - Thus, the first hurdle, the petitioner has to across is to
convince this Court that despite the existence of an alternate remedy,
the petitioner is entitled to challenge the impugned order by way of
this Writ Petition. - The first contention raised by the petitioner is that the
impugned order is wholly without jurisdiction inasmuch as
adjudication under the provision of the Central Goods and Service Tax
Act, 2017, (CGST Act) read with Integrated Goods and Service Tax
Act, 2017, (IGST Act), is to be done by a proper officer in terms of
Section 2(91) of the CGST Act, or an adjudicating authority as defined
under Section 2(4) of the CGST Act. That the respondent is neither a
proper officer nor an adjudicating authority as defined and
contemplated under the CGST Act or the IGST Act. It is submitted
that the bill of entry, dated 21.07.2017, was assessed on self
assessment basis under Section 59 of the CGST Act and
redetermination of such a bill of entry can be done only in the manner
prescribed under Section 73 of the CGST Act, which provides for
issuance of notice and notice having not been issued to the petitioner,
the entire action initiated by the respondent is without jurisdiction.
The CGST Act read with IGST Act provide for filing appeals before the
appellate authority prescribed under the Act and such authorities are
yet to be notified and therefore, the petitioner are left with no
alternate remedy except for filing this Writ Petition. Apart from the
submissions, with regard to the maintainability of the Writ Petition,
the petitioner has raised several other grounds with regard to the
classification of the goods, which was elaborately reiterated by
Dr.Krishnanadh. - In my considered view, a Writ Court cannot make a fact
finding exercise to ascertain, which would be an appropriate entry
under which the goods are to be classified. Infact, under the normal
course in respect of classification disputes, the High Court cannot
entertain an appeal against an order passed by the CESTAT as appeal
lies to the Hon’ble Supreme Court in respect of classification issues or
matters concerning rate of tax. - The impugned order is on request made by the petitioner
to furnish a speaking order under Section 17(5) of the Customs Act,
1962. A cursory reading of the impugned order would clearly show
that the petitioner submitted themselves to the jurisdiction of the
respondent in appearing before the respondent and requesting for an
order with reasons. In such circumstances, it has to be seen as to
whether the plea of lack of jurisdiction now raised by the petitioner is
sustainable. The respondent on a request made by the petitioner vide
their letter, dated 27.07.2017, to pass a speaking order afforded them
an opportunity of personal hearing on 16.08.2017. The proprietor of
the petitioner attended the hearing and contested the classification
adopted by the department for the imported goods, which are tiller
blades. It appears that the petitioner did not dispute the classification
as under entry 84329010, but submitted that the correct rate of IGST
should be at 12%. The respondent has taken a decision by classifying
the goods by fixing the rate of tax at 18% and in support of such
conclusion has given certain reasons. Exercising jurisdiction under
Article 226, I do not propose to venture into as what would be the
appropriate classification of the goods as this exercise being a factual
exercise has to be necessarily agitated before the appellate authority.
Needless to state that in the appeal petition, the petitioner is entitled
to canvass all points including the ground of lack of jurisdiction which
is sought to be canvassed before this Court for the first time. - For the above reasons, the Writ Petition is dismissed as
not maintainable, leaving it open to the petitioner to file an appeal
before the appellate authority and in the event of the appeal being
filed, the appellate authority, while computing limitation shall exclude
the period from 20.09.2017 till the date of receipt of the certified copy
of this order. No costs. Consequently, connected Miscellaneous
Petition is closed.
