Custom, Excise & Service Tax Tribunal
Gabriel India Ltd vs Nhava Sheva, Mumbai Ii on 3 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/403/2012
[Arising out of Order-in-Appeal No: 100(CRC-1)/2012(JNCH)/IMP-89 dated 21/02/2012 passed by the Commissioner of Customs (Appeals), Mumbai II.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
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
Gabriel India Ltd.
Appellant
Vs
Commissioner of Customs (Import)
Nhava Sheva, Mumbai II
Respondent
Appearance:
Shri D.H. Nadkarni, Advocate for the appellant Shri V.C. Kohle, Dy. Commissioner (AR) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 03/04/2013 Date of decision: 03/04/2013 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal arises from Order-in-Appeal No: 100(CRC-1)/2012(JNCH)/IMP-89 dated 21/02/2012 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai II.
2. The appellant, M/s. Gabriel India Ltd., filed Bill of Entry No. 866219 dated 21/04/2009 for clearance of goods under EPCG scheme. While filing the Bill of Entry, the appellant did not file any freight bill and, therefore, the value of freight was taken as 20% of the FOB value and the goods were assessed to duty accordingly. The appellant noticed the mistake and immediately thereafter, on 02/05/2009, furnished the freight bill for the transaction and sought amendment of the Bill of Entry under Section 149 of the Customs Act, 1962. They also filed a refund claim for the excess duty paid of ` 15,02,622/-. While the request of the appellant for amendment of the Bill of Entry under Section 149 was pending, the refund claim was rejected on the ground that the appellant did not challenge the assessment and, therefore, in view of the decision of he honble apex Court in the case of Priya Blue Industries and Flock India Pvt. Ltd. the refund is not permissible. The appellant preferred an appeal before the lower appellate authority who vide the impugned order dismissed their appeal and hence the appellant is before us.
3. The learned counsel for the appellant made the following submissions:
3.1. When the Bill of Entry was filed they had also submitted the freight bill to the CHA but the CHA committed an error and did not submit the freight bill and, therefore, the goods were assessed taking 20% of the FOB value towards freight and accordingly the appellant discharged duty liability on the freight amounting to ` 15,02,622/- but immediately thereafter, they noticed the error and submitted a letter dated 02/05/2009 to the Dy. Commissioner of Customs, Nhava Sheva enclosing therewith copy of the Bill of Entry, duty paid challans and the freight invoices received from the steamer agent and sought amendment of the Bill of Entry under Section 149 of the Customs Act, 1962. This matter was kept pending by the department without taking any decision thereon.
3.2. The appellant under the RTI Act sought information on the action taken by the department on the application for amendment of the Bill of Entry under Section 149. As per the information provided by the department, from the notings made in the concerned file, it is seen that the request was received by the department on 02/05/2009 and the matter was referred to the EDI section for re-assessment of the Bill of Entry. Thereafter, the EPCG section on 24/06/2009 made the notings that the amendment to the Bill of Entry, could be considered under Section 149 of the Customs Act, 1962 based on the documents existing at the time of import. However, since the importer had furnished wrong details in the Bill of Entry the same warrants invoking of penal provisions under Section 117 of the Customs Act, for violation of Section 46. Thereafter, so many notings were recorded in the file and ultimately the Commissioner vide order dated 25/10/2010 noted that the letter of party dated 02/05/2009 may be considered as refund application as it has been held in such cases that letter of party (even though not on prescribed format) can be considered as a refund application. If the department felt that it is not a proper case under Section 149 we should have advised them. Please process the case as a refund case. In pursuance of the said decision of the Commissioner, the case was sent to the refund section and the impugned order has been passed denying the refund. Thus, the appellant has been put to loss because of the delay in the decision making process by the department whether to allow the amendment of the Bill of Entry under Section 149 or to treat it as a claim for refund. Accordingly, it is prayed that the application for amendment of the Bill of Entry under Section 149 be allowed and on such amendment relief be granted to them.
4. The Dy. Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities and relies on the decision of the honble High Court of Madras in the case of Commissioner of Customs, Tuticorin vs. Thiru Arooran Sugars Ltd. 2010 (254) ELT 45 wherein the Court held that rejecting the amendment to the Bill of Entry under Section 149 was justified when it involved re-quantification of duty. Similarly, in the case of Commissioner of Customs, Nhava Sheva vs. Panasonic Battery India Co. Ltd. 2010 (256) ELT 623, this Tribunal held that a mistake on the part of the assessee while presenting the Bill of Entry cannot be corrected under Section 154 and, therefore, he pleads for sustaining the impugned order.
5. We have carefully considered the submissions made by both the sides. In the instant case, it is clear from the records that the appellant committed an error in not declaring the freight amount at the time of filing of the Bill of Entry and did not submit the invoice for the freight paid. Nevertheless on 02/05/2009, within a period of two weeks from the date of filing of the Bill of Entry, the appellant produced the commercial invoice indicating the payment of freight vide invoice dated 02/04/2009 issued by Lift & Shift India Pvt. Ltd., the shipping agent and sought amendment of the Bill of Entry under Section 149 of the Customs Act, 1962. Section149 of the Customs Act, 1962 provides that:
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 a 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. Thus the only condition required to be satisfied for availing the provisions of Section 149 is that the documentary evidence on the basis of which the amendment is sought, should be in existence when the goods were cleared. In the instant case the Bill of Entry was filed on 21/04/2009 and the freight invoice indicating the amount of freight is dated 02/04/2009. In other words, the documentary evidence which the appellant submitted was in existence when the Bill of Entry was assessed and the goods were cleared. It was only an inadvertent error committed by the CHA in not furnishing the freight invoice along with the Bill of Entry. Powers of discretion under Section 149 has been provided to the Customs Officers to allow amendments in genuine cases. From the facts available on record and the notings made by the various sections of the Customs department, it is evident that the appellants case is a genuine one. That is the reason why the Commissioner directed the lower authorities to treat the letter dated 02/05/2009 as refund application and grant relief to the appellant accordingly. In spite of such decision by the superior authorities, the lower authority has chosen to disregard the direction of the Commissioner and deny the relief to the appellant.
5.1. Even the decision of the honble Madras High Court in the Thiru Arooran Sugars Ltd. case, cited supra, dealt with a different situation altogether. In that case the respondent was not able to indicate why the Customs Officer ought to have exercised the discretion under Section 149. It was in that context the honble High Court held that rejection of amendment under Section 149 was justified. These are not the facts obtaining in the present case before us. In the present case there is a genuine error committed by the appellant in not filing the freight bill at the time of filing of the Bill of Entry. When the error was noticed, immediately thereafter, the appellant took action to rectify the mistake by making an application under Section 149 along with documentary evidence in support of the claim for actual freight. Thus there is enough justification for the proper officer to exercise the power under Section 149. Powers are given to the officers to sub-serve justice and not to deny them. In our view, in the present case, the department ought to have allowed the amendment of the Bill of Entry under Section 149 and give consequential relief to the appellant.
6. Therefore, we remand the matter back to the adjudicating authority to consider the application of the appellant to consider amendment under Section 149 and thereafter consider the refund claim of the appellant in accordance with law.
7. Thus, the appeal is allowed by way of remand.
(Pronounced in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 2