Custom, Excise & Service Tax Tribunal
Honeywell Turbo Technologies (India) ... vs Commissioner Of Customs (Acc & Export), ... on 30 April, 2014
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/709/10-Mum
(Arising out Order-in-Appeal No. 74/Mumbai-III/2010 dated 28.06.2010 passed by the Commissioner of Customs (Appeals), Mumbai III)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Honeywell Turbo Technologies (India) P. Ltd.
Appellant
Vs.
Commissioner of Customs (ACC & Export), Mumbai
Respondent
Appearance:
Ms. Laxmi Menon, Advocate for the appellant Shri K.S. Mishra, Addl.Comm (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 30/04/2014 Date of decision : 30/04/2014 O R D E R No:..
The appellant is in appeal against the impugned order denying amendment to bill of entry under Section 149 of the Customs Act, 1962.
2. The brief facts of the case are that the appellant imported certain machinery items under four invoices no. 103, 106, 107 and 108. The goods covered under invoices no. 103, 106, 107 were examined and cleared on payment of duty. The invoices no. 108 containing three machines as per the packing list and having gross weight 5550 kgs. and net weight 3600 kg. were cleared without examining the goods. Thus, this invoice was issued for three machines but at the time of opening the boxes it was found that there is only one machine instead of three machines. The appellant sought amendment in bill of entry to the tune that the machines which were mentioned in the invoice were not received by them. Therefore, the application for amendment of bill of entry was filed under Section 149 of the Customs Act, 1962 on the premise that as they have not paid any duty in cash on the said goods, therefore they were not required to file refund claim of the excess duty paid as per the invoice but has been debited in the EPCG licence. The amendment in the bill of entry was denied on the premise that as the goods have been cleared for home consumption and the document on the basis of which the appellant is seeking amendment in bill of entry was not available at the time of filing of the bill of entry. Aggrieved from the said order, the appellant is before me.
3. The ld. counsel for the appellant submits that it is admitted fact that in this case the goods covered under invoice 108 were not examined at all. It is further submitted that the goods were cleared after debiting the customs duty in the EPCG licence and after clearance of the goods the appellant found out the actual goods found in the boxes that instead of three machines mentioned in the invoice, only one machine was received, hence the appellant sought amendment in the bill of entry on the basis of invoice and packing list available at the time of filing Bill of Entry.
4. On the other hand, ld. AR strongly opposed the contention of the ld. counsel that the appellant had produced Chartered Engineers certificate to certify the fact that the appellant has received only one machine instead of three machines. The Chartered Engineers certificate was not available at the time of clearance of the goods, the amendment cannot be allowed. He further submits that invoices no. 103, 106, 107 were in the similar fashion but the invoice no. 108 is not in the same fashion as it contained packing list and having gross weight and net weight. He further submits that this invoice was not signed by the examiner at the time of clearance of the goods.
5. Heard both sides. Considered the submissions and examined the relevant documents.
6. In this case, the facts are that Bill of Entry was filed for clearing the goods containing four invoices no. 103, 106, 107 and 108. The invoice no. 108 is issued for three machines, sought by the appellant for importation. In invoice no. 108 packing list, gross weight and net weight were mentioned. Admittedly, goods in invoice no. 108 were not examined at all by the customs officers at the time of clearance. But the goods contained in two boxes as mentioned in the Invoice no. 108 were opened by the appellant in their premises and found that the instead of three machines covering the invoice, they received only one machine. They sought amendment of bill of entry to that extent under Section 149 of the Customs Act, 1962. The contention of the ld. AR that as the invoice no. 108 is not in same manner as per invoices no. 103, 106, 107 creates doubt at the time of clearance and they could have produced some other invoice having invoice no. 108. But the ld. AR failed to produce any documentary evidence in support of this contention. Merely alleging that at the time of clearance, appellant could have produced some other invoice does not confirm the allegation. In these terms, the argument of the ld. AR is not acceptable.
7. Further, as per Section 149 of the Customs Act, 1962 the amendment can be allowed in the bill of entry on the basis of documents available at the time of clearance of the goods. In this case, the invoice, packing list, gross weight and net weight were available at the time of clearance of the goods. The amendment of the bill of entry has been sought on the basis of these documents only. These facts could have been ascertained by the concerned authorities at the time of entertaining the application for amendment in the bill of entry, whether gross weight and net weight contained in invoice no. 108 are actually received or not. As in this case, no examination of the goods covering invoice no. 108 was done, in these circumstances, the impugned order denying the amendment in bill of entry as per Section 149 of the Customs Act, 1962 is not correct. Therefore, I set aside the impugned order and direct the Adjudicating Authority to examine the fact whether the machines mentioned in invoice no. 108 at the time of filing of bill of entry have actually been received by the appellant or only one machine was received. After ascertaining the said fact, the Adjudicating Authority shall pass a necessary order for amendment in the bill of entry.
8. Appeal is allowed by way of remand.
(Dictated in Court) (Ashok Jindal) Member (Judicial) //SR 5