Custom, Excise & Service Tax Tribunal
Ms Allaince Cellulose India P Ltd vs Tuticorin on 19 June, 2019
1
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, SZB, CHENNAI
REGIONAL BENCH - Division Bench B3
Customs Appeal No. C/42409 of 2018
(Arising out of Order-in-Appeal No. 185/2018 TTN (CUS) dated 08.08.2018
passed by the Commissioner of Customs & Central Excise (Appeals), Trichy).
M/s. Alliance Cellulose India Pvt. Ltd. Appellant
B-2204, Brentwood, Hiranandini Upscale,
5/63, Rajiv Gandhi Salai (OMR)
Egattur, Chennai-603103.
Vs.
The Commissioner of Customs & Respondent
Central Excise (Appeals), No. 1, Williams Road, Cantonment, Trichy-620 001.
APPEARANCE:
Shri S. Murugappan, Advocate, for the appellant Shri L. Nandakumar, AC, Authorized Representative for the Respondent CORAM:
HON'BLE MR P.DINESHA, Judicial Member FINAL ORDER No. 40856/2019 Date of Hearing: 10.05.2019 Date of Pronouncement: 19.06.2019 Brief facts leading to this appeal, interalia, are that "Klabin Soft wood bleached kraft pulp - off grade" was imported under the Bill of Lading MSCUP5142836 dated 29.05.2017, the consignment had arrived at Tuticorin Port on 31.07.2017. The importer having disowned the cargo, issued no objection letter dated 26.12.2017 to the shipper and also to the Revenue which led to the appellant's entry, who, vide letter dated 03.01.2018 informed the Revenue that they 2 were willing to clear the goods after IGM amendment. Thereafter, the appellant filed an application seeking waiver of late filing charges which was adjudicated by the Asst. Commissioner, Tuticorin, who vide communication dated 12.03.2018 partially waived the charges for late presentation of the Bill of Entry, ie., for the period 09.02.2018 to
02.03.2018, but however, the same was charged for the period 31.07.2017 to 08.02.2018 ie., from the date of entry of the vessel at the port up to the date of presentation of amended IGM. The reasons given by the Asst. Commissioner interalia, are that the Standing Order No. 01/2017 dated 06.09.2017 issued by the Chief Commissioner of Customs (Preventive), Trichy, has specified the following cases for waiver of charges of late presentation of the Bill of Entry:
i) Technical problems related to ICEGATE connectivity, server etc.,
ii) The Bill of Entry number not generated by the system within the free period,
iii) Delay caused due to reasons which are beyond the control of the importer like natural calamities, etc.,
iv) Delay in filing due to any other reason which are considered as bonafide by the proper officer.";
that there was no technical problems relating to ICEGATE connectivity; that the new consignee was identified on 29.05.2017 itself; that IGM and amendment of IGM was filed by the liner based on the information provided by the shipper and the consignee; that the goods in question having landed on 31.07.2017 and the shipper having raised a revised invoice on the new consignee on 29.05.2019 itself, the same came to be filed only on 02.03.2018; that the appellant has not put forth any compelling reasons that prevented the shipper and the new consignee to conclude the contract for the goods at the earliest, etc. Aggrieved by the above, appellant preferred an appeal before the Commissioner of Customs, Central Excise, Trichy, and the first appellate authority vide impugned order dated 08.08.2018 having rejected the appellant's claim for waiving of late filing charges, the present appeal is filed.
32. Today when the matter came up for hearing, Shri S. Murugappan, Ld. Advocate appeared for the assessee and Shri L. Nandakumar, AC, Ld. DR appeared for the Revenue. The contentions of the Ld. Advocate, in brief, are that appellants' Principal namely North Rim Pulp And Paper Inc., Vancouver, BC, Canada, issued a proforma invoice dated 02.05.2017 for the supply of paper pulp of about 600 MTs to M/s. Karur K.C.P. Packaging's Limited, Pollachi; that Karur K.C.P accepted it and placed a purchase order dated 04.05.2017 and the buyer was required to pay 20% advance and the balance 80% on DP basis; that the concerned goods were shipped through Commercial invoice dated 29.05.2017, under Bill of Lading dated 29.05.2017; Karur K.C.P vide letter dated 26.12.2017 informed the Department that due to fund constraints they were unable to clear the cargo and issued a no objection to the shipper to sell the cargo to any third party; based on this, documents were recalled and amended in the favour of the appellants herein; that on 03.01.2018 the Asst. Commissioner, Tuticorin permitted amendment of the IGM; that on the same day appellants requested the Asst. Commissioner for permission to amend the Bill of Entry substituting their name against Karur KCP; after the issuance of revised Bill of Lading on 02.03.2018, the amendment was carried out in the commercial invoice also and that therefore, appellants filed a fresh Bill of Entry dated 02.03.2018 for clearance of the cargo.
2.1 Ld. Advocate also relied on the clarification issued by the Board vide instruction No. 12/2017-Cus. dated 31.08.2017. Based on the above, Ld. Advocate submitted that the appellant has made out a case and therefore, the benefit of waiver should have been exercised judiciously, by the authorities below.
3. Per contra, Ld. DR Shri L. Nandakumar, AC, while supporting the findings of the lower authorities, contended that the instruction/standing order which are relied on by the Ld. Advocate refers to the specific instances wherein, the benefit of waiver could be granted. He further contended that the invoice copy of which is filed along with the appeal memorandum, refers to the appellant as the 4 applicant and the copy of Bill of Lading dated 29.05.2017 placed at page-27 also shows the name of the consignee as Alliance Cellulose India Pvt. Ltd., who is none other than the appellant in this case. He further refers to the "request to change the consignee" dated 21.12.2017 placed at page - 37 of the appeal memorandum to contend that between the dates of invoice/Bill of Lading and the request to change the consignee itself the appellant has consumed 203 days. He further refers to another letter placed at page - 40 of the appeal memorandum dated 26.12.2017 requesting to amend the customs manifest as per the new Bill of Lading and the date of request for waving of late filing charges made on 08.02.2018, to contend that there was a further unexplained delay of 47 days and therefore concludes his arguments by contending that the adjudicating authority has properly and judiciously levied/waived the late fee charges strictly in terms of Board's instructions.
4. Ld. Advocate, replying to the above contentions of the Ld. DR, submits that there was a series of exchange of e-mails after the date of invoice/Bill of Lading copies of which were placed at pages 47-50, which finally resulted in the appellant accepting to clear the goods and therefore reiterates his submission for waiver of late fee charges. He argues that the supplier could revise the names in the documents but that the relevant Bill of Lading cannot be issued with a new date as the cargo had arrived in July, 2017 itself; that a letter dated 26.12.2017 was addressed to the Customs authorities for amendment of Bill of Entry; that on the same day they made a request to the liner's agent to carryout amendment of IGM which was permitted by the authorities; another letter dated 03.01.2018 was addressed to the Assistant Commissioner seeking permission for amending the Bill of Entry; that similar requests were made vide letters dated 12.02.2018 and 26.02.2018; that though IGM was permitted to be amended but the amendment of Bill of Entry was not permitted and instead they were asked to file a fresh Bill of Entry and only thereafter a fresh Bill of Entry dated 02.03.2018 came to be filed.
54.1 I have considered the rival contentions, gone through the various documents placed on record and also gone through the Board's Circular relied on by the Ld. Advocate. The sole issue that survives for consideration is whether the appellant has made out a case for waiver of late fee charges, in terms of Section 46 of the Customs Act, 1962. I find that there is sufficient force in the contentions of the Ld. DR when he pointed out to the date of Bill of Lading from which it is very much clear that the appellant was also very much in the know of the developments. Some of the e-mail exchanges between the parties inter se placed on record refers to the correspondences made after the Bill of Lading which carries the name of the appellant as the consignee. Further, the correspondence/exchange of emails placed on record are all inter-se communications which are not having any evidentiary value and the same is not binding on the Revenue. Though the appellant has explained the delay up to the date of application for request of waiver, ie., 08.02.2018, I am of the view that the appellant's explanation is insufficient. This is also for the reason that the original Bill of Lading dated 30.05.2017 from the shipper carries the name of the original consignee ie., Karur KCP Packaging Ltd., whereas the other Bill of Lading incorporating the name of the appellant as the consignee, perhaps after the amendment in IGM, carries the date as 29.05.2017. This glaring contradiction has not at all been explained by the appellant.
4.2 In view of the above, I do not see any reason to interfere with the findings of the lower authorities and therefore the appeal of the assessee is dismissed.
(Order pronounced in the Open Court on 19.06.2019) (P.DINESHA) JUDICIAL MEMBER BB