Custom, Excise & Service Tax Tribunal
Reiter India Pvt.Ltd vs Commissioner Of Customs(Import), ... on 29 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
APPEAL NO.C/86179/13
(Arising out of Order-in- Appeal No.771(Gr.IV)/2012(JNCH)/2012-IMP-639 dtd.28.12.2012 passed by the Commissioner of Customs (appeals), Mumbai.II)
For approval and signature:
Honble Mr Ashok Jindal, Member(Judicial)
Honble Mr.P.K.Jain, Member(Technical)
============================================================
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 :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
=============================================================
Reiter India Pvt.Ltd.
:
Appellants
VS
Commissioner of Customs(Import), Nhava Sheva
Respondent
Appearance
Shri J.S.Sanghvi, Consultant for Appellants
Shri D.V.Nagweukar, Addl. Commissioner(A.R.) for Respondent
CORAM:
Mr. Ashok Jindal, Member(Judicial)
Mr.P.K.Jain, Member(Technical)
Date of hearing: 29/05/2014
Date of decision 29/05/2014
ORDER NO.
Per : Ashok Jindal
The appellant is in appeal against the impugned order, wherein the request for reassessment of Bill of Entry 3610581 dated 25.5.2011 was rejected.
2. The brief facts of the case are that the appellant had imported a consignment of Textile Machinery parts vide invoice no.3506445/2000 dated 10.05.2011 totally valued at 997740.24 CHF, vide Bill of Entry No.3610581 dated 25.5.2011. The assessable value was ascertained to Rs. 5,17,78,557.60 and duty liability amounting to Rs. 1,36,31,094/- with interest of Rs. 16,805/- was paid by the appellant vide TR-6 challan No.2001219193 dated 03.06.2011. After the clearance of the goods, appellant realized that value of item No.0040 i.e. part No.10242849 having description as PT-screw Torx KA40 *12WN1451 was shown as 4.04 CHF instead of 0.04 CHF. The appellant had placed an order for purchase of 400000 pcs of this part @ 0.04 CHF vide purchase order No.4501971252/L31 dated 16.03.2011 to M/s. Maschinefbrik Reiter AG. Winterthur. The appellant noticed the error and contacted the supplier who in turn informed the appellant that they have charged wrong price for the said part due to typographical mistake, wherein it was shown as CHF 4.04 per pc for 200000 pcs of the said item instead of CHF 0.04 per pc. On receipt of the goods in factory and on receipt of original Bill of Entry, the appellant availed Cenvat credit against the said consignment vide Entry No.1173 dated 11.07.2011 amounting to Rs. 83,58,661.70. However, after noticing the error in invoice value, the appellant immediately reversed the Cenvat Credit vide entry No.1202 dated 19.07.2011.
3. The appellant paid excess duty of Rs. 1,11,46,682.70 due to error in the invoice for which they made application before the Dy.Commissioner for reassessment of the Bill of Entry. The application was rejected on the ground that the goods were no longer under customs charge and no documentary evidence was available warranting amendment and reassessment of Bill of Entry. The said order was challenged before the ld.Commissioner(Appeals) who confirmed the adjudication order. Aggrieved by the said order, the appellant is before us.
4. The ld.Consultant appearing on behalf of the appellant submits that the actual price of PT screw Torx KA 40* 12 WN1451 was 0.04 CHF but it was shown wrongly in the invoice as 4.04 CHF. Due to that reason, they paid the excess duty. It is further submitted that on pointing out the said fact to the supplier, the supplier issued Credit Note for the excess amount paid to them i.e. 8 lakhs CHF and the same has been remitted to the appellant through banking channels. The purchase order also shows the purchase at the rate of 0.04 CHF. These documents were available at the time of filing the Bill of Entry. Therefore, amendment is required to be allowed. He further submitted that as per CBEC Manual, the amendment in the Bill of Entry can be allowed on sufficient proof being shown to the Deputy/Asstt.Commissioner after the goods have been given out of charge. Therefore, the impugned order is required to be set aside.
5. On the other hand, the ld. Additional Commissioner (A.R.) supported the impugned order.
6. Heard both sides and considered the submissions. In this case, the fact that the appellant has paid the excess duty is not in dispute as the price of the impugned item was 0.04 CHF which was invoiced wrongly by the supplier as 4.04 CHF and the appellant has also received the excess amount paid to supplier by way of Credit Note. The purchase order as well as the invoice were available at the time of filing the Bill of Entry. In these circumstances, as per the CBEC Manual, amendment in Bill of Entry is required to be allowed although goods have been given out of charge. Therefore, we do not find any merit in the impugned order and the same is set aside. The appeal is allowed with consequential relief. The adjudicating authority is directed to implement this order within 30 days of its communication.
(Pronounced in court) P.K.Jain Member(Technical) Ashok Jindal Member(Judicial) Pv Per: P.K.Jain While I agree with the conclusion of my Ld.Brother, I would like to add that the proposed amendment in the Bill of Entry is of such a nature that it has no implication with the physical examination of the goods and hence can be allowed even after out of charge
2. My Ld.Brother has also recorded that the adjudicating authority is directed to implement this order within 30 days of its communication. I have reservation of giving such direction. In this case, goods were cleared in May, 2011 and refund claim was filed in September,2011. The appeal was filed in this Tribunal on 15.3.2013. It is not a case of live consignment. There is no request from the appellant for providing a time limit.
Every organization (including this Tribunal) has its own procedure to process various documents. This process takes its own time. Like in the present case, this Tribunals order is required to be examined in the Custom House at different levels and finally a decision has to be taken whether to accept the order of the Tribunal or challenge the same before the Honble Court and also whether to file stay petition.
3. We must respect the procedure being followed in every organization and also not put any organization in different direction or change their priority. Of course, if any lower authority is not implementing orders passed by this Tribunal, appellant can bring that to the notice of the Tribunal and there are adequate provisions and powers with this Tribunal to ensure implementation of its order. However, directing the lower authority to implement the order in a particular time frame at the time of issuing order itself is not appropriate. Such a direction of the Tribunal would be affecting the normal working of the Custom House and also put avoidable and uncalled pressure on officers dealing with the subject. I, therefore, do not agree with the direction of the Ld.Brother to implement this order within 30 days of its communication.
(P.K.Jain) Member(Technical) 6