Custom, Excise & Service Tax Tribunal
-Kolkata(Port) vs Century Led Limited on 3 June, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Miscellaneous Application No. 75415 of 2022 (Stay)
And
Customs Appeal No. 75849 of 2022
(Arising out of Order-In-Appeal No. KOL/CUS(PORT)/AKR/414/2022 Dated 11.08.2022
passed by Commissioner of Customs (Appeals), Kolkata)
Commissioner of Customs (Port), Kolkata
(15/1, Strand Road, Kolkata-700001)
Appellant
VERSUS
M/s Century Led Limited
(Srijan Industrial Logistics Park, Bombay Road,
NH-6, Howrah-711403)
Respondent
APPEARANCE :
Mr. Faiz Ahmed, Authorized Representative for the Appellant None for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) MISCELLANEOUS ORDER NO.75223/2024 FINAL ORDER NO.75995/2024 Date of Hearing : 03 June 2024 Date of Decision : 03 June 2024 ORDER [PER R. MURALIDHAR]:
The Department has filed the Stay Petition along with Appeal being aggrieved by the Order-in-Appeal passed by the Commissioner (Appeals) wherein the fine imposed for late filing of the Bill of Entry was set aside by the Commissioner (Appeals).
2. No one has appeared on behalf of the Respondent. Since the matter is in a short compass, I have taken up the Appeal itself for disposal with the help of the Learned AR.
2Customs Appeal No. 75849 of 2022
3. On going through the facts of the case, it is seen that the Appellant had filed the Bills of Entry alongwith all the documents on time through ICEGATE site but the same was not getting uploaded and was reflected due to technical glitches. The Appellant also has brought to the notice of the Revenue official about the difficulty faced by them in this regard. Subsequently, the Bill of Entry was filed with the delay and system has automatically imposed a fine on the Appellant. Since the Appellant was in urgent requirement of the imported goods, they opted to pay the fine and cleared goods. After this, they filed an Appeal before Commissioner (Appeals). The Commissioner (Appeals) has gone through documentary evidence produced by the Respondent showing that the Respondents have made all efforts to file the Bill of Entry along with relevant documents on time but were prevented to file online due to the technical glitches in the ICEGATE site. The Commissioner (Appeals) has recorded these facts and has relied on the case law of Blueleaf Trading Company Vs. Commr. of GST & C. Ex., Tiruchirapalli reported in 2019 (370) E.L.T. 1396 (Tri.-Chennai), wherein the Tribunal has held as under:-
"6. Subsequently, vide Notification No. 36/2018-Customs (N.T.), dated 11-5- 2018 the 'Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations, 2018' was introduced. Regulation 4 of the Regulations (supra) deals with the delayed filing of Bill of Entry and the consequence thereto and proviso to Sub-Clause (3) authorizes the proper officer to even waive off the charges if he was satisfied with the reasons for the delay. It is quite clear that the provisions of Section 46 ibid nowhere mandate charging of late fee for the delayed filing of Bill of Entry as fee is charged subject only to the 'non-satisfaction' of the proper officer and the Board's Instructions, some of which are referred to hereinabove, also authorize the proper officer to waive off subject to his satisfaction.
7.1 The Order-in-Original dated 8-11-2017 has nowhere questioned the bona fides of the importer/Customs Broker against whom the said order was passed since it is the first requirement of Section 46 read with proviso to Sub-Clause (3) that the charge of late fee was subject to non-satisfaction of the proper officer as to 3 Customs Appeal No. 75849 of 2022 the sufficiency or otherwise of the cause for delay, which discernibly is not questioned.
7.2 Further, the appellant has also furnished a number of communications, filed with the Additional Commissioner of Customs, Assistant Commissioner of Customs and Deputy Commissioner of Customs, all at Customs House, Tuticorin, dating prior to that of passing of the Order-in-Original, explaining the cause for delay in filing the belated Bills-of-Entry. The explanation/cause shown in these letters have not at all been rejected as insufficient, wrong or improper, which only reflects the bona fides of the appellant.
7.3 The impugned order referring to this Order-in-Original dated 8-11-2017, has also not questioned the bona fides of the appellant. In his order, however, the Commissioner (Appeals) has only directed the adjudicating authority to charge the assessee the late fee from the date of agreement made between the shipper and the appellant, which was nobody's case and not even as per law. As discussed above, Section 46 ibid authorizes the proper officer to collect late fees subject to his 'non-satisfaction' of the cause shown and there is no via media. The appellant admittedly is not the first importer, but a saviour who came forward at a later stage. The Act only contemplates charging of late fee from the importer per se. It is clear from the impugned order as well as that of the Commissioner (Appeals) that there was no reason/question of 'non-satisfaction' as to the reasonable cause shown by the appellant. In the above factual background therefore, it is very difficult to accept as to how the Order-in-Original came to be passed against a Customs Broker just because it made a request. Appellant is clearly not the first importer, there is request for amendment in IGM on record, allowed by the Revenue after collecting requisite fees and these are clearly post-import developments. The subsequent developments, as observed supra, were perhaps necessitated because of the goods being perishable. Clearly, no mala fide is found in the above developments by the Revenue and therefore, it can be safely assumed that the Revenue was otherwise satisfied with 'sufficient cause'.
8. For the above reasons, I am of the view that the impugned order is not sustainable and hence, the same is set aside.
4. He has also relied on the case law of M/s. Ecom Gill Coffee Trading Pvt. Ltd. Vs. Commr. of Customs Tuticorin reported in 2019 4 Customs Appeal No. 75849 of 2022 (10) TMI 62-CESTAT Chennai, wherein on similar issue, the Tribunal has set aside the late fee imposed on the importer.
5. I find that the Commissioner (Appeals) has gone through the factual details and the documentary evidence produced by the Respondent herein and has correctly relied on the cited Tribunal decisions. Therefore, I do not see any reason to interfere with the considered decision taken by the Commissioner (Appeals). Accordingly, I dismiss the Appeal filed by the Revenue.
6. Stay Petition also stands disposed off.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja