JUDGMENT : Arindam Sinha, J. 1. The application and appeal were taken up for hearing together, the formalities being dispensed with. 2. The appellant imported four consignments of solar re-chargeable emergency lights which according to it are to be classified under Customs Tariff Heading 94055040 attracting the benefit of notification nos. 12 and 21 of 2012, both dated 17th March, 2012. The bills of entry were filed for first check. On first check the proper officer of Customs classified the goods under Customs Tariff Heading 85131090. The appellant challenged such classification by writ petition which was disposed of by order dated 3rd December, 2015. Being aggrieved the writ petitioner is before us in appeal. 3. The writ petition was dismissed, without calling for affidavits, on the reasons given in the impugned order as are reproduced below: “In the instant case, however, it is noticed that the petitioner’s initial self-assessed bills of entry were verified by a proper officer and at the time of verification a query was raised by the proper officer to the petitioner “to please explain the goods”. In response, the petitioner “requested for 1st check”. Consequently the proper officer noted change in classification of the imported goods. Whether this electronic conversation tantamounts to reassessment is required to be answered in the negative. The reason is, if there was a case of reassessment, the proper officer would have revised the values given by the importer while self-assessing the duty leviable on the goods imported. In the instant case, however, the imported goods were self-assessed by the petitioner under a different classification and on query made by the proper officer the petitioner requested for “1st check” and thus allowed the proper officer to reclassify the imported goods under a different classification head, which does not amount to reassessment. That apart and in any event, the petitioner accepted the reclassification of the imported goods without any demur or protest between October, 2014 and February, 2015 and thereafter cannot approach this Court by filing the writ petition in the month of July, 2015, seeking a mandatory order directing the proper officer to pass a speaking order, which was required to be passed within fifteen days.” 4. Mr. Mehta, learned advocate appearing on behalf of the appellant submitted that there was a re-assessment done on the self assessment made by his client. Mr. Mehta, learned advocate appearing on behalf of the appellant submitted that there was a re-assessment done on the self assessment made by his client. His client had not confirmed acceptance of the said re-assessment in writing. The proper officer of the Customs however did not pass a speaking order on the re-assessment within fifteen days from the date of re-assessment of the bills of entry. The mandate in subsection (5) of section 17 of the Customs Act, 1962 was not fulfilled and hence the re-assessment ought to have been set aside and quashed by the writ court. 5. He submitted, the fact that his client had asked for first check was of no consequence. The bills of entry were self assessed as required by section 17 of the said Act. First check was possible under the provisions of section 18 of the said Act. The writ court had erred in holding that when his client had requested for first check it allowed the proper officer to re-classify the imported goods under the a different classification which did not amount to re-assessment. He referred to part 7, CBEC’s Manual of Instructions, in particular to clauses 3 and 4 to submit that on a reading of those clauses with sections 17, 18 and 46 of the said Act, it could be ascertained with mathematical precision that the facts in the present case were that of a re-assessment contemplated under sub-section (5) of section 17. He relied on a judgment of a Division Bench of this court in the case Kothari Metals Ltd. Vs. Union of India reported in 2011 (274) E.L.T 488 (Cal.), which though rendered in the context of sub-section(5) of section 17 prior to its amendment but, he submitted, was applicable to this case. Paragraphs 15 to 17 therefrom are reproduced below:- “15. On a plain reading of the aforesaid sub-section, it appears that a duty is cast upon the proper officer to pass a speaking order within 15 days from the date of assessment of the bill of entry or the shipping bill, except the cases where the importer confirms his acceptance of the assessment in writing. 16. In the case before us, the date of assessment of the bill of entry is 12th December, 2007 and the said 15 days expires on 27th December, 2007. 16. In the case before us, the date of assessment of the bill of entry is 12th December, 2007 and the said 15 days expires on 27th December, 2007. No material has been produced before us showing that within 15 days, the appellant confirmed the original assessment on the basis of the bill of entry in writing; on the other hand, it appears that the appellant specifically raised objection before the Customs authority on the 15th day from 12th December, 2007. 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.” 6. Mr. Roy, learned advocate appeared on behalf of Customs and submitted that the impugned order carried good reasons for dismissing the writ petition of the appellant and the same should not be interfered with. 7. In view of the contention of the appellant that there is no significance of first check when bills of entry are filed and first check can only be resorted to under section 18, the question of law arose for consideration as to whether bills of entry filed for first check and the assessment made pursuant thereto was a re-assessment that attracted the provisions of sub-section (5) of section 17 of the Act. 8. Section 17, so far as it relates to import goods, provides that an importer shall self-assess the duty leviable on goods. Section 18 provides for a situation where the importer is unable to make self-assessment under sub-section (1) of section 17. The said section further provides that in such a case the proper officer may direct that the duty leviable on such goods be assessed provisionally. Section 46 deals with entry of goods on importation. 9. From the clauses of the Customs Manual, referred to by the appellant, it can be seen that first check is an examination prior to assessment, in case, inter alia, the importer does not have complete information with him at the time of import and requests for examination of the goods before assessing the duty liability. In such a situation a provisional assessment may be made and likely to get converted into final assessment. 10. In such a situation a provisional assessment may be made and likely to get converted into final assessment. 10. The undisputed facts are that though the appellant presented self-assessed bills of entry dated between 13th October, 2014 and 5th February, 2015 but it requested for first check on query being raised by the proper officer in respect of the goods sought to be imported. The appellant importer having thus signified lack of information about the goods sought to be imported caused an examination of the goods. On such examination the classification under Customs Tariff Heading was made by the proper officer. Pursuant to such classification made the appellant paid the duty applicable thereto and got released the goods. The appellant did not prefer an appeal against such assessment order within the time prescribed nor applied for refund of duty under section 27 of the Act. It was much later that the appellant filed the writ petition making out a case of violation of the mandatory provision of sub-section (5) of section 17 where no objection to that effect was taken in the material time. 11. At the stage when the hearing was over, Mr. Roy, insisted and obtained direction to file affidavit. On 28th February, 2017 the Revenue filed an affidavit affirmed by the Deputy Commissioner of Customs, Port, Kolkata. The appellant declined to file affidavit-in-reply. In that affidavit, in para (3)(c)(I), inter alia, the following was said:- “3(c)(i).It is submitted that importer has not raised any dispute either as to change in classification nor to value enhancement and therefore, the Bill of Entry in itself is an order of assessment under section 17(5) of the Customs Act, 1962……………” 12. Mr. Mehta relied upon the submission on the part of the Revenue that the order of assessment made in the bill of entry was an order under section 17(5) of the Act. He argued, the order being of reassessment was liable to and should be set aside since the proper officer after having made the same, which was contrary to the self-assessment made by the appellant regarding valuation of the goods and classification and where the appellant had not confirmed acceptance of such re-assessment in writing, was to pass a speaking order regarding the re-assessment which was not done. 13. 13. The adjudication of the question of law we formulated is to be on consideration of the submissions made by the parties. The order made by the proper officer on the bills of entry in changing the classification and value enhancement is an order of re-assessment attracting the provisions of sub-section (5) of section 17 of the Act as urged by the appellant which also appears to be the case from the affidavit filed by the Revenue. Hence, the conclusion has to be that the proper officer was required to pass a speaking order on the re-assessment within 15 days of the re-assessment of the bills of entry. No speaking order was passed. In the circumstances, we have no hesitation to set aside the re-assessment. In view of the aforesaid, there is no scope for a contrary finding. The writ petition thus succeeds to that extent. 14. Before parting with the case we are constrained to observe that the Revenue sought to oppose the appeal and had given us to believe that to substantiate their position against the case made out in the stay petition and grounds of appeal, they wanted to file an affidavit-in-opposition. The said affidavit states it is an affidavit-in-opposition but contains the aforesaid statement which enabled the appellant to succeed in the appeal. This has prompted us to direct the Registry to cause service of a copy of this order upon the Chairperson of the Central Board of Excise and Customs, at Ministry of Finance, North Block, New Delhi for information regarding how the interest of the Revenue is being dealt with. Such service be made by the Registry. 15. The application and appeal are thus disposed of.