Custom, Excise & Service Tax Tribunal
M/S Modison Metals Ltd vs Commissioner Of Customs (Import), ... on 3 August, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Application No. C/S/521/09 in Appeal No. C/315/09 (Arising out Order-in-Original No. 127/2009 CC (X) dated 17.2.09 passed by the Commissioner of Customs (Import), Nhava Sheva) For approval and signature: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. A.K. Srivastava, 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?
4. Whether Order is to be circulated to the Departmental authorities?
M/s Modison Metals Ltd. Appellant Vs. Commissioner of Customs (Import), Nhava Sheva Respondent Appearance:
Shri V.S. Sejpal, Advocate for the appellant Shri N.A. Sayeed, JDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. A.K. Srivastava , Member (Technical) Date of hearing : 3.8.2009 Date of decision : 3.8.2009 O R D E R No:..
Per: Shri P.G. Chacko, Member (Judicial) After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with the pre-deposit, we take up the appeal for disposal.
2. The appellant had filed a bill of entry dated 8.9.2008 for clearance of certain capital goods imported by them. This bill of entry contained references of import general manifest dated 29.7.2008, bill of lading dated 5.7.08 and invoice no. 5041 dated 5.7.2008. The gross weight of the goods was shown as 13,420 kg. The number of packages was shown to be 4. The invoice value was shown to be 15674000 Yen. On the basis of the invoice value and allied particular declared in the bill of entry, the proper officer of customs assessed the duty of Rs.2,24,925/-, which was paid by the assessee. Subsequently on 26.9.2008, the assessee submitted a letter to the Commissioner of Customs stating that they had short-paid customs duty by oversight. They stated that only one invoice was brought on record before the assessing authority though there were two invoices covering the four packages of goods. The bill of entry was assessed to duty based on one invoice only. The assessee apologised for this mistake and requested for reassessment so that they could pay the differential amount of duty. In support of this request, the party produced the relevant invoice along with the packing list, bill of entry, EPCG licence etc. Later, the assessee submitted another letter dated 5.11.2008 to the Commissioner reiterating their request for reassessment and payment of duty on the goods covered by the other invoice which was not mentioned in the bill of entry. They also produced a pay order for Rs.1,94,935/- towards differential duty. They also expressed their willingness to pay any interest, if applicable. The assessee did not get any response from the department. In the circumstances, by letter dated 16.1.2009, they requested the Dy. Commissioner of Customs (EPCG) to accept the above payment and also to resolve the matter without issuing a show-cause notice and personal hearing. This request did not receive any reply. Later on, the assessee received an order of the Commissioner wherein the goods were confiscated under Section 111 of the Customs Act, fine of Rs.15 lakhs was imposed in lieu of confiscation under Section 125 of the Act and a penalty of Rs.10 lakhs was imposed on them under Section 112 of the Act. The present appeal is directed against the Commissioners order.
3. After hearing the ld. counsel for the appellant and the ld. DR for the respondent, we find that the appellant was not heard on any proposal for confiscation of the goods. Section 124 of the Customs Act provides for such an opportunity of being heard to the owner of the goods which are sought to be confiscated. This opportunity was not afforded in this case. This apart, the specific request of the assessee for re-assessment was ignored. Where the bill of entry did not present the essential particulars such as assessable value correctly due to oversight or other reason, it was open to the importer to apply to the proper officer of customs under Section 149 of the Customs Act for permission to amend the bill of entry. Strictly speaking, this kind of a request was not made by the appellant. However, they did make a request for re-assessment of the goods. This request was made on the basis of documents which were in existence as on the date of filing of the bill of entry. This satisfied the requirement of Section 149 of the Act and therefore, in our considered view the proper officer of customs ought to have advised the party to make an application under Section 149 along with their application for re-assessment so that the officer could proceed to re-assess the bill of entry so that the assessee could pay the differential amount of duty on the basis of such re-assessment. The assessee in this case was always ready to pay the differential duty. It is also on record that the Dy./Asst. Commissioner of Customs (EPCG) has issued a shipment certificate dated 9.3.2009, wherein the differential duty payment made by the assessee was acknowledged. It appears, before 9.3.2009 there was a re-assessment of duty in this case. Otherwise, the differential duty payment would not have been taken into reckoning. However, no copy of any bill of entry reassessed is available on record. Such re-assessment can be made on the bill of entry only after the necessary particulars are incorporated in the appeal under Section 149 of the Act. We are of the considered view that the department can set its record straight by granting permission to the assessee by amending the bill of entry and thereafter re-assessing the same. For this limited purpose, the case is send back to the Commissioner, who shall pass a fresh order in the case from the angle of assessment, after granting the assessee an opportunity under Section 149 of the Customs Act. In other words, we direct the ld. Commissioner to act upon the assessees request for re-assessment in accordance with law so as to set the records straight.
4. Reverting to the impugned order, we have found no valid reason for confiscation nor for penalty inasmuch as the order was passed in breach of rules of natural justice as embodied under Section 124 of the Customs Act. The order is set aside and the appeal is disposed of in the above terms.
(Dictated in Court) (A.K. Srivastava) (P.G. Chacko) Member (Technical) Member (Judicial) SR 5