IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 25852 of 2009(B) --------------------------------------- PETITIONER(S): ----------------------- M/S.KAIRALI GRANITES, NH BY PASS, ADJACENT TO HOTEL WYTE FORT, MARADU, COCHIN-04, REPRESENTED BY ITS PROPRIETOR V.R.NARAYANAN EMBRAN. BY ADV. MR.P.A.AUGUSTIAN, MR.T.R.JAGADEESH. RESPONDENT(S): -------------------------- COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, W/ISLAND, COCHIN-9. BY ADV. MR.THOMAS MATHEW NELLIMOOTTIL, SC, EXCISE & CUSTOMS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25852/2009-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TR6 CHALLAN. EXT.P2: COPY OF THE NOTIFICATION NO.26/2000. EXT.P3: COPY OF THE LETTER DATED 24/04/2009 ADDRESSED TO RESPONDENT. EXT.P4: COPY OF THE REFUND CLAIM. EXT.P5: COPY OF THE ORDER IN ORIGINAL NO.27/09 DATED 15/07/2009. EXT.P6: COPY OF THE LEGAL NOTICE DATED 25/08/2009. EXT.P7: COPY OF THE LETTER F NO.S32/97/2009 APPG (I) CUS DATED 27/08/2009. EXT.P8: COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT OF BOMBAY. EXT.P9: COPY OF THE JUDGMENT DATED 18/08/2008 IN WP(C) NO. 24744 OF 2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE BILL OF ENTRY BEARING NO.243355 DATED 08/04/2009. //TRUE COPY// P.A. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25852 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT The petitioner firm had imported polished marble slabs from Srilanka and as per the import policy, goods imported from Srilanka under Indo Srilanka Free Trade Agreement, basic customs duty is exempted. Customs duty was assessed on the petitioner, taking basic customs duty at the rate of 10%. According to the petitioner, the request to rectify the mistake was not agreed to by the respondent and hence this writ petition has been filed seeking for various reliefs. 2. The petitioner filed Bill of Entry No.243355 dated 8.4.2009 for customs clearance. It is the case of the petitioner that due to an inadvertent mistake committed by the petitioner, the Bill of Entry was filed without mentioning the exemption notification and the respondent assessed customs duty taking basic customs duty at the rate of 10%. The petitioner was forced to make payment of Rs.6,70,321/- against actual duty payable amounting to Rs.3,45,012/-. Ext.P1 is the copy of the TR6 Chalan evidencing payment of duty. Ext.P2 is the notification relied upon by the petitioner. Ext.P3 is the request made by the petitioner for re- wpc 25852 /2009 2 assessment/refund of excess customs duty paid and Ext.P4 is the copy of the refund claim. This was rejected by Ext.P5 stating that as the assessee did not challenge the assessment order, the refund claim cannot be maintained. According to the petitioner, no other reason is stated as to why the benefit of Indo Srilanka Free Trade Agreement is not extended to the petitioner. Even though Ext.P6 legal notice was issued, by Ext.P7 a reply was given rejecting the claim. 3. The respondent has filed a counter affidavit. The stand of the respondent is that as the petitioner failed to claim exemption under the Free Trade Agreement while filing the Bill of Entry, he is not entitled to claim any exemption at this stage. It is also mentioned that the petitioner, if aggrieved, can challenge the assessment order passed in the Bill of Entry, as the same is appealable. 4. Learned counsel for the petitioner submitted that the respondents may be directed to pass a speaking order on his request, so that he can challenge the same in appeal. Learned counsel further submitted that the benefit of Indo Srilanka Free Trade Agreement ought to have been extended to the petitioner. 5. It is true that going by the various decisions relied upon by the respondent, a Bill of Entry is also appealable. But that will not prevent the wpc 25852 /2009 3 respondent from passing a speaking order in the matter. 6. The question is whether the petitioner is entitled for the benefit of the In Ext.P5, the view taken is that a refund claim is not maintainable, when the assessee does not challenge the assessment order. But, for enabling the petitioner to file an appeal, the respondent can pass a speaking order which is the request made by the learned counsel for the petitioner now. 7. Therefore, there will be a direction to the respondent to issue a speaking order giving reasons for not extending the benefit of Indo Srilanka Free Trade Agreement, within 10 days from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/