M/s. Jaap Auto Distributors Versus The Assistant Commissioner of Customs
GST
2017 (10) TMI 881 – MADRAS HIGH COURT – 2017 (6) G. S. T. L. 262 (Mad.) , [2017] 1 GSTL 7 (Mad)
MADRAS HIGH COURT – HC
Dated:- 5-10-2017
W.P.No.25415 of 2017 & W.M.P.No.26857 of 2017
GST
T. S. Sivagnanam, J.
For Petitioner : Dr.S.Krishnanadh
For Respondent : Mr.A.P.Srinivas
ORDER
Heard Dr.S.Krishnanadh, learned counsel for the petitioner and Mr.A.P.Srinivas, learned Senior standing counsel for the respondent.
2. 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 seria
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n 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,
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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 peti
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