Custom, Excise & Service Tax Tribunal
Commissioner Of Customs vs M/S Art Alive on 11 October, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Customs Appeal No. 283 of 2018-Cus (DB) [Arising out of Order-In-Appeal No CC(A)Customs(Appeals)/D-I/I&G/50/2008 dated 31.01.08 passed by Commissioner of Customs , New Delhi] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Manmohan Singh, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Commissioner of Customs, Appellants New Delhi Vs. M/s Art Alive Respondent
Appearance:
Shri P.K. Sharma, AR for the Appellant Shri Prabhat Kumar, Advocate for the Respondents CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Manmohan Singh, Member (Technical) Date of Hearing: 19.06.2013 Date of Decision: .2013 ORDER NO .IO/ 375 /2013-Cus(BR) FO/58071/2013 Per Archana Wadhwa (for the Bench):
Being aggrieved with the order passed by Commissioner (Appeals) vide which he has set aside the confiscation of the imported painting with an option to redeem the same on payment of redemption fine of Rs. 1.50 lakh and has set aside the penalty of Rs.2 lakh imposed upon the importer. Revenue has filed the present appeal. We have heard Shri P.K. Sharma, learned AR for the Revenue and Shri Prabhat Kumar, learned advocate for the respondent assessee.
2. As per facts on record, the respondents imported a consignment of painting valued at Rs. 12,39,852.27 and filed a bill of entry dated 12.8.2006. As said bill of entry mentioned only one painting titled Bindu on the value of Euro 20,000/-. They subsequently filed a letter requesting for amendment in the Bill of entry praying for inclusion of another painting titled Rajasthan. The appellants submitted that inasmuch as both the paintings were purchased in two different invoices dated 4.8.2006 and inasmuch as both the paintings were showing invoice value of Euro 20,000/-, mention of only one painting in the Bill of entry was due to oversight and was a mistake on their part.
3. Inasmuch as the consignment consisted of two paintings in the Bill of Entry was only filed for one painting, the matter was taken up for adjudication. The original adjudicating authority observed that amendment in the Bill of entry was asked by the importer only after the order for first check was given on the Bill of entry though the said request was prior to examination of the goods. As such, he confiscated the painting with an option to the appellant to redeem the same and also imposed penalty upon them.
4. On appeal against the said order, Commissioner (Appeals) held in their favour and observed as under:-
5. I have carefully gone through the case records as well as the submissions made by appellant during personal hearing. Section 149 of the Customs Act, 1962 provides for the amendment in documents after their presentation. To say that the request for amendment to bill of entry cannot be entertained would render section 149 irrelevant. This can not be accepted at all. The appellant requested for rectification of its mistake before examination of the goods and there was nothing wrong in making such request. The order rejecting such request cannot be sustained and is therefore set aside with consequential relief, if any to the appellant. Appellants appeal is therefore allowed.
5. As is seen from the above, the Commissioner (Appeals) has examined the provisions of Section 149 of the Customs Act, 1962 and has rightly observed that if such amendment are not allowed, Section 149 would loose its relevance and would become infructous.
6. The sole point required to be decided in this appeal is as to whether the declaration of one painting in the Bill of Entry by the appellant was on account of oversight or as to whether the same was intentional so as to call for confiscation and penalty imposition.
We find that Bill of entry was filed on 12.8.2006 wherein only one painting was mentioned. The request for amendment in the Bill of Entry filed on 12.8.2006 was make by the respondent vide its letter dated 17.8.2006 addressed to the Deputy Commissioner of Customs, Airport. On going through the said letter, we find that the assessee has clearly written that due to oversight they have submitted only one invoice number dated 4.8.2006 for the clearance of the import shipment whereas there were totally two invoices i.e. without numbers and both dated 4.8.2006 for the same value i.e. Euro 20,000/-. We have also seen that two bills raised by the supplier of the goods and note that both the invoices are dated 4.8.2006. Whereas one painting is described as titled Rajasthan, the other painting stand described in the other invoice titled Bindu. The price of both the painting is Euro 20,000/- each. The importers have very strongly contended that inasmuch as both invoices are dated 4.8.2006 issued by the same supplier and as both the invoices were for Euro 20,000/-, the person responsible for filing Bill of Entry under a mistaken belief that both the invoices are for one painting, declared only one painting in the Bill of Entry. On examination of the filed invoices, we find that the same look alike except that in the column particulars, the title of painting stand given as Rajasthan in one invoice and as Bindu in another invoice. The said declaration in the particulars column, can be missed by any person and both the invoices can be presumed to have been issued only in respect of one painting. We also note that payment for both the painting stand already remitted to the foreign supplier through Bank on 24.7.2006 and 3.5.2006. We also note that first cheque order was passed on 18.8.06 whereas the request for amendment was made by the importer on 17.8.2006. In view of all the above factors, we hold that this is not a case of intentional mis-declaration of goods but an unintentional on the part of the person filing the Bill of Entry. Commissioner (Appeals) has rightly observed that section 149 is made for such unintentional mistakes. Human is to err and if such bonafide errors are not allowed to be amended, we really fail to understand as to what would be covered by the provisions of section 149 of the Customs Act.
7. In view of the above, we find no merits in the Revenues appeal.
(Pronounced in the court on )
( Archana Wadhwa ) Member(Judicial)
( Manmohan Singh )
Member (Technical)
ss
PER: Manmohan Singh
8. I have gone through the draft order prepared by Honble Member (Judicial) wherein appeal of the department has not been found maintainable and mistake of importer has been considered genuine requiring amendment in Bill of Entry under section 149 of Customs Act.
9. I have difference of opinion on the issue of amendment whether permissible on the facts circumstances of misdeclaration and whether such misdeclaration was deliberation. Also whether there should be leviability of redemption fine & Penalty. Therefore, I record this separate order in this regard.
10. It is observed from facts on record that Bill of Entry was filed on 12.8.2006 declaring only one painting of Shri. Raza valued at Euro 20,000/-. Invoice is dated 04.8.2006. However during examination two paintings were found by Customs. It is admitted fact the appellant incurred cost of total amount of Euro 40,000 (20,000 + 20,000) for two paintings. It was only when appellant came to know about order of first check, it requested for amendment of Bill of Entry under section 149 of Customs Act before examination could be undertaken. Department did not accept their request at the time of passing of Order-in-Original. However Commissioner (Appeals) accepted the amendment as bonafide mistake and allowed amendment under section 149 of Customs Act. However Revenue therefore comes in appeal before Tribunal against this order.
11. Section 149 of Customs Act, 1962 provides for amendment in documents after presentation thereof and the provision reads as under:
149. Amendment of documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house, to be amended :
Provided that no amendment of a Bill of Entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.
12. Above section has conferred discretion on the Customs to protest interest Revenue and to prevent mis-declaration made deliberately NO amendment is permitted unless that is authorized by the Customs Authority to amends the presenting party has on us of proof that there was no deliberate escapement of presentation of pooper documents.
13. It was contention of the department that importer did not come forward to disclose the total import made by two invoice while presenting Bill of Entry on 12/8/2006. Only on detection by customs apprehending misdeclaration charge, amendment was sought. This clearly shows the malafides on the part of appellants.
14. I have also gone through grounds of appeals of Revenue at Sl. No. iv, v, vi and vii of memo of appeal where it has been brought that there is no requirement of mens rea or malafides for confiscation and imposition of penalty. But violation attracts the provisions of law for penal action, Revenue relied on Supreme Court judgment in the case of 2006(5)SCC 361 Chairman, SEBI Vs. Sriram Mutual Fund to support its contention of detection of violation warranting penal action. That is a case of mis-declaration of quantity and value. They have also reled on judgment Madras High Court reported in 2007 (207) ELT 346 (Mad.) where in it is held that in case of mis-declaration and undervaluation of goods mensrea is not required for imposition of punishment under Customs Act, 1962. Similarly Honble Supreme Court in the case of M/s Pine Chemical Suppliers 1993 (67) ELT 25 (SC) has also held that in case of mis-declaration of description and value of imported goods, question of mens era not relevant for liability to confiscation and penalty under section 111(m), 112 and 125 of the Customs Act. Therefore for invoking penal provisions under Customs law, mens era is not pre requisite.
15. Based on above declaration, I find that it clearly comes out that mis-declaration was made deliberately to cause loss to Customs There was attempt to get the consignment cleared making mis-declaration which two paintings were ignored declaring only on painting to customs. Despite both invoices were of dated 04.8.2006 and available before filing Bill of Entry on 12.8.2006, respondent did not choose to file both invoices with intention to escape duty liability.
16. It is also observed that if order for first check would not have been done by customs, appellants would not have come forward for amendment of Bill of Entry. Request in amendment of Bill of Entry was filed on 17.8.2006. Examination was done on 18.8.2006 for assessment while first check was to bring truth of mis-declaration.
17. It can therefore be concluded that amendment of Bill of Entry was rightly rejected by assessing authority finding deliberating duration and exercised his judicious direction intent to evade manifested. Attempt to declare only one painting was there. Mera fact that they have sent the amount through banking channels for payment to foreign seller prior to filing of bill of entry would not come to their rescue does not mean that the appellant has not violated law. There was no bonafide mistake since facts were within exclusive and conscious knowledge of Respondent.
18. In above of decision, I hold that confiscation was justified and goods and called for giving option for RF and composition of penalty. No interference to R.F adjudicated is warranted. However keeping in mind that RF is remaining reformed by my reassuming given above penalty is reduced from Rs.2,00,000/- lakh to Rs. 1,00,000 lakh.
19. Appeal partly allowed. To the extent of reduction of penalty only.
(Manmohan Singh) Member (Technical) In view of above difference in opinion of both the members in this appeal, under mentioned questions arise for reference to the Honble President to resolve the same, Registrar is required to place both the files before him:
DIFFERENCE OF OPINION Whether on the facts and circumstances of the case denial of amendment to Bill of Entry was justified and imposing of redemption fine is sustainable and penalty reducible to Rs.1,00,000/- (Rs. One Lakh) as held by Honble Member (Technical). OR Whether on the facts and circumstances of the case upholding Order-in-Appeal is maintainable rejecting the appeal of revenue as held by Honble Member (Judicial).
(Archana Wadhwa) (Manmohan Singh)
Member (Judicial) Member (Technical)
K Gupta
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