Page 239 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] ZYMONUTRIENTS PVT. LTD. v. COMMISSIONER OF CUSTOMS, CHENNAI 461

(i) Kasturi Foods and Chemicals v. CCE - 1995 (77) E.L.T. 584 (Tri. - Del.)
(ii) Kasturi Foods and Chemicals v. CCE - 1995 (80) E.L.T. 169 (T).
(iii) Moorco India v. CC, Maras - 1994 (74) E.L.T. 5 (S.C.).
4.2 Ld. AR submits that as per the appellants, the goods cannot be con-
sumed by human beings and merit classification under preparations of a kind
used for animal feed and the appellant dependent on the letter issued dated 12-7-
2011 by the Central Food Laboratory; the test reports received in the instant case,
from CRCL, described the product to be inactive yeast; appellants cannot rely on
rejection of sample by CFL stating that the same was not fit for human consump-
tion. She further submits that as in the present case provisional assessment was
in terms of Section 18(1)(b) of Customs Act, 962 and thus, speaking order in
terms of Section 17(5) of Customs Act, 1962 is not required to be issued; further,
in terms of Section 128(1) of Customs Act, 1962 any decision or order passed by
officers of Customs can be appealed before the Commissioner (Appeals).
5. Heard both sides and perused the records of the case.
6. The issues that require consideration in this case are :
(i) Whether in the facts and circumstances of the case, the lower adju-
dicating authority was required to issue a speaking order in terms
of Section 17(5) of the Customs Act, 1962 ?
(ii) In the absence of such speaking order what could be the relevant
date for appeal in terms of Section 128 of Customs Act, 1962 ?
(iii) What is the correct classification of the impugned goods whether
under Chapter 21 as contended by the department or under Chapter
23 as contended by the appellant ?
7. Coming to the issue of speaking order under Section 17(5) of the
Customs Act, 1962, we find that initial classification claimed by the appellants
was rejected by the department and the appellants have also protested the pay-
ment of duty. We find that in terms of Section 17(5) where any reassessment done
under sub-section (4) is contrary to the self-assessment done by the importer or exporter
regarding valuation of goods, classification, exemption or concessions of duty availed
consequent to any notification issued therefor under this Act and in cases other than
those where the importer or exporter, as the case may be, confirms his acceptance of the
said reassessment in writing, the proper officer shall pass a speaking order on the re-
assessment, within fifteen days from the date of reassessment of the bill of entry or the
shipping bill, as the case may be.
8. On perusal of this provision, it is crystal clear that in cases where the
reassessment is done contrary to the assessment done by the importer and where
the assessee does not accept such reassessment in writing, the proper officer shall
pass a speaking order under reassessment; in the instant case, the appellants
have claimed classification under CTH 2309 90 90 whereas the department has
assessed under CTH 2102 20 00; therefore, it is evident that the assessment has
been done contrary to the claim of the appellant; the appellants have registered
protest also; it is not the case of the department that the appellants have accepted
the reassessment in writing; therefore, in terms of Section 17(5) of Customs Act,
1962, the department was under obligation to issue a speaking order. To this ex-
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