Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Maruti Udyog Ltd. on 2 March, 2000
Equivalent citations: 2000(119)ELT83(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. M/s. Maruti Udyog Ltd., the respondent to this appeal, filed on 28-4-1995 five bills of entry in Kandla Custom House, which were noted in the import department, and the rotation numbers, in accordance with the normal procedure, allotted. Subsequently, by letter, dated 1-5-1995, the Assistant Collector informed the importer that the bills of lading which were submitted with the bills of entry were unsigned and that therefore the bills of entry should not have been noted. It was stated that this noting was cancelled and the importer was advised to furnish bills of entry along with bills of lading duly signed by the appropriate person. The respondent filed fresh bills of entry with the signed bills of lading on 4-5-1995 and 8-5-1995. By this time the exchange rate for the Japanese yen which was the currency in which the invoice was prepared had altered to the disfavour of the importer. The Custom House applied the exchange rate prevailing on 4-5-1995 and 8-5-1995 and duty was assessed and paid. The importer filed an appeal against the letter of Assistant Collector referred to above cancelling the already noted bills of entry. It also filed a claim for refund of the duty which it said had been paid in excess of the correct exchange rate applicable, which would be the rate of exchange prevailing on 28-4-1995 when the bills of entry were first filed. This refund claim was rejected. The importer filed an appeal against that order of rejection. The order impugned in this appeal by the Collector (Appeals) has disposed of both the appeals against the letter of the Assistant Collector cancelling the noting and the order of the Assistant Collector dismissing the refund application.
2. In the impugned order, the Collector (Appeals) says that the order of the Assistant Collector cancelling the noting of the bills of entry already made is not tenable. He finds no provision in law for cancellation of the notings of the bills of entry suo motu by the authorities for want of authentication on any document presented. He notes that the importer should have been given an opportunity to rectify the defect in the bill of lading. Details in the bill of lading "if necessary would have been verified with the import manifest." He has not, in fact, found any justification for the cancellation of the bills of entry. Accordingly he held that while refund is otherwise allowed, it should be permitted subject to the provisions relating to unjust enrichment.
3. The department's appeal challenges this finding on the following grounds. The bills of entry were not filed in accordance with the provisions of the Bill of Entry (Form) Regulations, 1976. These regulations framed under Section 46 of the Act prescribes that bill of lading is one of the essential document to accompany the bill of entry. It is therefore implicit that the bill of lading should have accompanied the bill of entry. In the absence of that it was void ab initio. The department to whom the bill of entry was presented is not proper officer under Section 46. In view of this, an unsigned bill of lading cannot be accepted. The error in noting the bill of lading was a clerical error and therefore can be rectified under Section 154 of the Act. If the importer was aggrieved against the order of the cancellation of the noting in the bill of entry, he should have appealed. The departmental representative emphasises and explained these contentions.
4. The last ground fails to take into account the Commissioner's order that the importer had in fact appealed the order of cancellation and noting and that this appeal has been disposed of by the Collector (Appeals).
5. It is not possible for us to agree that the law requires a bill of lading must inevitably accompany the bill of entry. There is no such requirement in the law. Normally, a bill of lading does accompany a bill of entry, and the form of the bill of entry in fact contains a column for the number and date of the bill of lading. Sub-section (2) of Section 46 provides that unless it is otherwise permitted by the proper officer a bill of entry shall include and the goods mentioned in the bill of lading or such documents it otherwise carried. The bill of lading would no doubt be necessary to ensure compliance with the provisions of this sub-section. However, as the Collector (Appeals) points out this purpose could have been achieved from the copy of the bill of lading submitted. Advocate for the respondent explains that what was submitted was one of the non-negotiable copy of the bill of lading which is unsigned. It is only the negotiable copy which is signed. If that is so, and there is no reason not to accept this contention, the copy of the bill of lading submitted contained all the details necessary to ensure compliance with the provisions of Sub-section (3) of Section 46. There was really no justification for the bills of entry to be returned.
6. This being the case, we do not think it necessary to go into the other question as to whether subsequent cancellation of the bill of entry was required or not.
7. The departmental representative contends that the assessment has taken place not on the original sets of the bills of entry but the bills of entry subsequently filed. The exchange rate has correctly been applied in respect of these bills of entry. The answer to this argument is that the department cannot take advantage of its own wrong doing in cancellation of the bill of entry apparently filed and noted.
8. We are not able to find any support for the contention that the noting clerk to whom the bill of entry was presented was not a proper officer under Section 46(1) of the Act. Apart from this, it has been a long standing experience in several Custom Houses, the bills of entry presented are noted by the noting clerk.
9. We therefore see no reason to interfere. Appeal dismissed.