Custom, Excise & Service Tax Tribunal
M/S.Bhatia Global Trading Ltd vs Commissioner Of Customs(Import), ... on 18 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos.Cus.Ap.70113-70114/13
(Arising out of Order-in-Appeal No.5-6/CUS/BBSR-I/2013 dated 25.02.2013 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL):
HONBLE DR. I.P. LAL, 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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Bhatia Global Trading Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Import), Paradip(Odisha)
Respondent (s)
Appearance:
Shri Ramesh Nair, Advocate for the Appellant Shri A.K.Raha, Special Counsel for the Respondent CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical) Date of Hearing:- 18.07.2013 Date of Pronouncement :- 18.07.2013 ORDER NOA-208-209/KOL/13 Per Dr. D.M. Misra:
1. These two Appeals are filed against Order-in-Appeal No.5-6/CUS/BBSR-I/2013 dated 25.02.2013 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar. Since the issue involved in these Appeals are common, both are taken together for disposal.
2. Briefly stated the facts of the case are that an IGM was filed by the steamer agent viz. Orissa Stevedores Ltd on 02.12.2011, inter alia, mentioning the importer of the cargo as MMTC and other particulars as required under the provisions of Customs Act,1962. Subsequently, Bill of Entry No.5365734 dated 02.12.2011 for home consumption was filed on 02.12.2011 for the total imported quantity of 57,800 M.T. of Indonesian Steaming (Non-Cooking) Coal in bulk, declaring the value and applicable rate of duty as on the relevant date. The said Bill of Entry was assessed by the customs authorities on 07.12.2011 and the total duty payable on the said cargo was determined as Rs.3,07,39,606/-. The assessed Bill of Entry was handed over to the importer M/s. MMTC for payment of duty. Similarly, for import by M/s STC, the IGM was filed by the same steamer agent on 20.02.2012. The Bill of Entry No.6052529 for home consumption was filed on 21.02.2012 for the imported quantity of 31,699 M.T. Indonesian Steaming (Non-Cooking) Coals in bulk. The said Bill of Entry was also assessed by the Customs Department and the total duty payable was determined as Rs.2,59,15,981/-. The assessed Bill of Entry was also handed over to M/s.STC for payment of duty.
3. Neither M/s.MMTC nor M/s.STC had paid the duty assessed under the respective Bills of Entry nor cleared the cargo from the Customs area. Consequently, in July/ August 2012 notices were issued to both the importers initiating action under Section 48 of the Customs Act,1962 as they failed to clear the cargo from the port area. The said importers M/s MMTC & M/s STC had submitted to the Commissioner of Customs(Import) Paradip Port vide letters dt. 10.08.2012 & 14.09.2012, respectively, informing that due to some logistic problem in transferring the imported cargo, the same could not be moved from the port area. Further, they have stated that neither customs duty was paid nor any amount was remitted to the foreign supplier, hence, the respective Bills of Entry be treated as withdrawn. It was also stated that they have no objection for cancellation of the respective Bills of Entry filed earlier for the imported goods and also change of their name mentioned in the IGM in favour of the new consignee, as importer of the said goods.
4. Thereafter, M/s.Bhatia Global Trading Ltd. had approached Commissioner of Customs(Import), Bhubaneswar on 30.10.2012 requesting for cancellation of the Bills of Entry and also amendment to the respective IGM filed by the importer M/s.MMTC and M/s.STC, on the ground that they have entered into agreement with the overseas seller/supplier and purchased the said consignments, which were not cleared by the previous importers. Also, in the said letters they had requested for cancellation of Bills of Entry filed by the previous importers M/s MMTC & M/s STC and for filing fresh Bills of Entry for clearance of the said consignments for consumption on the basis of their transaction value and the rate of duty prevailing on the date of filing the fresh Bills of Entry. Further, they have mentioned that they were willing to pay the duty, interest etc. as per the earlier assessed Bills of Entry, on provisional basis, without prejudice to their right of claiming the correct liability as per the fresh Bills of Entry, allowed to be filed, after cancellation of the earlier Bills of Entry. More or less similar worded letters were also written by the steamer agent seeking amendment to IGMs filed earlier. Correspondences were made with the department by the Appellant repeating the same requests from time to time.
5. The Asst. Commissioner of Customs, Paradip, after considering their requests, addressed a letter/communication dated 20.12.2012 to the Appellant, whereby, their requests for amendment to the IGM, cancellation of the earlier Bills of Entry and for filing fresh Bills of Entry were rejected. Aggrieved by the said decision/letter, the Appellants filed an Appeal before this Tribunal and by an Order dated 02.01.2013 this Tribunal declined to interfere, observing that the Appeal against such decision of Asst. Commissioner is not maintainable under Section 129A of the Customs Act, 1962. Aggrieved by the order of the Tribunal, the Appellants had filed S.L.P. No.5075 of 2013 before the Honble Supreme Court. The Honble Supreme Court by its order dated 30.01.2013 disposed the said S.L.P. with the direction to the Commissioner of Customs, Paradip to dispose of their Appeal/application as quickly as possible. Pursuant to the said direction of the Honble Supreme Court, the Commissioner of Customs(Appeals), Bhubeneswar, after hearing the Appellant, had decided their Appeal. The Ld. Commissioner(Appeals) has upheld the decision of the Assistant Commissioner of Customs, Paradip and rejected the contention of the Appellants. Hence, the present Appeals.
6. Shri Ramesh Nair, Ld.Advocate for the Appellants, at the outset submitted that since the imported goods were neither cleared nor its consideration were remitted to the overseas seller/supplier by the previous importers, namely, M/s.MMTC and M/s.STC, the overseas supplier chose to sale the goods to other buyers in India as he continued to be the owner of the said goods. The Appellants had entered into an agreement with the overseas supplier in August/September, 2012 for purchase of the said imported consignment. Consequently, the previous importers namely M/s.MMTC and M/s.STC, who had not remitted any amount to the overseas supplier, agreed to issue no objection in favour of the new consignees/importers, and accordingly, all relevant imported documents were handed over and endorsed in favour of the Appellants. The Ld.Advocate further submitted that after getting possession of all the documents relating to import of the said goods, they have requested the Customs authorities for amendment to IGMs filed earlier, for incorporating the name of the Appellant as importer, in place of M/s MMTC or M/s STC, as the case may be, in the respective IGMs. The Appellant had also requested for cancellation of the Bills of Entry filed by the earlier importers , and for filing fresh Bills of Entry for clearance of the said goods for home consumption. In the respective applications, it is also mentioned that Appellants would be accepting on provisional basis, the duty assessed in the respective Bills of Entry applying the rate of duty and exchange rate prevailing on the date of assessment of the earlier Bills of Entry and also the value declared in the said Bills of Entry with interest, without prejudice to their right, pending finalization of the issue, in accordance with law. On a query from the Bench on the status of the respective Bills of Entry filed by M/s MMTC & M/s STC, the importers, the Ld. Advocate has fairly accepted that the earlier Bills of Entry were finally assessed and the importers have not filed Appeal against the said assessment. The Ld. Adv. explaining the intention of the Appellant for provisional payment of assessed duty, interest, etc. and amendment to IGMs & for filing fresh Bills of Entry, was to avail the benefit, if any, available to them as per law due to change in the rate of duty and the transaction value as on the date they purchased the uncleared consignment from the overseas seller/supplier and not to defraud the Revenue. He has submitted that the Appellants might be ready to discharge the duty, interest and other liabilities, as per the assessed Bills of Entry, so as to bring an end to the present dispute/ litigation, for which he sought time to get instructions.
7. The Ld. Advocate after receiving necessary instructions has submitted that the Appellants are willing and ready to discharge all the duties, interest and other liabilities as per the assessed Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, and requested for a direction to the Customs authorities to allow amendment in the respective IGMs to the extent of substitution of their name as importers, for M/s.MMTC or M/s.STC, as the case may be, and also amendment to the Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, only to the extent of replacement of the name earlier importers with that of the Appellants, so as to facilitate them to discharge all their liabilities and clear the goods for home consumption, thereafter. He has submitted that the Applicant be allowed to file necessary amendment application to the said Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012 under Section 149 of the Customs Act, 1962 against their request for cancellation of earlier Bills of Entry and for filing fresh Bills of Entry. The Ld.Advocate has categorical in making the statement that the Appellant would discharge all liabilities towards duties, interest etc., assessed against the said Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, and determined as would be payable on the date of clearance of the said goods from the custody of Customs, and submitted that to that extent their prayer for relief in the Appeal Memorandum filed before this Tribunal be treated as modified/amended, and the necessity for filing modification/application be dispensed with due to urgency of matter.
8. Shri A.K.Raha, Ld.Special Counsel for the Revenue has submitted that the Applicants request for amendment to IGMs and also cancellation of earlier Bills of Entry were rejected mainly on the ground of substantial loss of revenue to the exchequer. The Ld. Special Counsel has also fairly admitted that since the assessed Bills of Entry were not challenged either by the Department or by the earlier importers M/s.MMTC or M/s.STC, the duty determined in both these cases are binding on both sides. It is his contention that once the Appellants are ready willing to discharge finally all the duty liability along with interest and other charges, if any, as per assessed Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, till the date of clearance/removal of the imported goods from the custody of the Customs Department, there should not be any other reason, not to accept their request for amending the respective IGMs to the extent of change of name of the importers, and consider their application seeking amendment to the Bills of Entry, only to the extent of change of name of the importer in the respective Bills of entry, so as to facilitate them to discharge all the liabilities and clear the goods for home consumption. It is his contention that he has no objection in accepting the statement of the Ld. Adv. made before this Tribunal in this regard.
9. Heard both sides and perused the record. Undisputedly, the importers, M/s.MMTC and M/s.STC, both Public Sector Undertakings, have imported Indonesian Steaming (Non-Cooking) Coal in the month of the Dec. 2011 & Feb. 2012, from the same overseas seller/supplier. At the time of importation of the said goods, the importers had complied with all the necessary formalities, like submission of IGM, Bills of Entry etc. along with other relevant documents necessary for clearance of the Cargo for home consumption from the Customs area. It is also not in dispute that the Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively, were finally assessed by the Customs authorities and handed over to the importers M/s.MMTC and M/s.STC for payment of duty; but both the importers have failed to discharge the duty and clear the goods. In the meantime, the authorities have initiated action under Section 48 of the Customs Act. Thereafter, the importers M/s MMTC & M/s STC had filed representations with the Customs authorities informing that they could not clear the goods because of logistic problem and requested for cancellation of the respective Bills of Entry and also expressed of having no objection for amending the IGMs in favour of the new consignee to whom the goods would be sold by the overseas supplier.
10. Further, we find that the Appellants after entering into the agreement of purchase and sale of the said imported goods with the Overseas seller/supplier, had filed applications with the Customs authorities requesting amendment to the respective IGMs for incorporating their name as importer. Also, they have requested for cancellation of the earlier Bills of Entry filed and sought permission to file fresh Bills of Entry for clearance of the said cargo for home consumption and expressed their willingness to discharge duty, interest and other charges as per the assessed Bill of Entry, but on provisional basis reserving their right for final assessment of their duty liability on the basis of fresh Bills of Entry permitted to be filed by them.
11. We find that the authorities below rejected their request, mainly on the ground that the amendment to IGM would result in substantial loss of revenue and thus the intention of the Appellants were fraudulent. In other words, the rejection of the request of the Appellant was solely on the apprehension of the Revenue that consequent to the amendment to respective IGMs and after filing the fresh Bill of Entry, the Appellant would seek re-assessment of the imported goods, already finally assessed and would claim the benefit of reduction in the rate of duty and value claiming the date of filing of the fresh Bill of Entry as the relevant date for assessment of goods. We find merit in the apprehension of the Department of substantial loss of revenue on account of downward revision in assessable value as well as in the rate of duty on the date of filing fresh Bills of Entry by the Appellant for the same goods which were earlier assessed and payment of duty against each of the Bill Entry was pending and proceeding underSec.48 of the Customs Act,1962 have been initiated. However, in the present scenario, we do not find any reason for harbouring the said apprehension any more. The Ld. Advocate after due instruction from the Appellants has made a categorical statement, now, before this Tribunal that they would discharge all the liabilities i.e. assessed duty, interest and other charges which would be arising out of the said assessed Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively, while clearing the imported goods from the custody of the Customs authorities. If the Appellants are ready to discharge the duty assessed by the Department relating Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively, and other liabilities as on the date of clearance of goods, we do not see any reason as to why the amendment to the IGMs requested by them, only to the extent of change of the names of the importers, be not allowed, as the principal ground for rejection of such request, is no more relevant. We also find that for the purpose of payment of the assessed liabilities and facilitating clearance of the goods, the Ld. Adv. for the Appellants has submitted that instead of requesting cancellation of earlier Bills of Entry and filing of fresh Bills of Entry, they would now seek amendment to the Bills of Entry to the extent of replacing their name as importer in place of M/s MMTC or M/s STC, as the case may be, which in our opinion, deserves to be considered by the Department, when the Appellants are willing to discharge all their liabilities against the said imported goods. In our view, this is the pragmatic solution to put an end to the dispute/litigation, in the interest of both sides and to meet the ends of justice. The Ld. Spl. Counsel for the Revenue has also accepted the said solution. Since both sides have agreed and reached to an amicable solution, in our view, it is not necessary to enter into other technical niceties of the case, as the above observations are made on the peculiar facts and circumstances of the present case. In the result, we set aside the impugned Order and remand the case to the adjudicating authority, with the following directions to give effect to our above observation.
(i)The amendment to IGMs be allowed to the extent of replacing the name of the importers M/s MMTC or M/s STC, as the case may be, with that of the Appellant.
(ii) Application for amendment to Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively,if filed by the Appellants; only to the extent of substitution of the name of importers viz. M/s MMTC or M/s STC, as the case may be, with that of the Appellant, be considered.
At this juncture, Shri Ramesh Nair, Ld. Advocate for the Appellant submitted that as the imported goods are live stock and the Appellants have to pay heavy demurrage charges, a time frame be fixed for disposal of the case to which the Ld. Spl Counsel for the Revenue has no objection. The Ld. Adv. sought four weeks time to file all papers with the Customs authorities. Consequently, we direct the Department to dispose of the Application within a period of one month from the date of receipt of relevant documents/Applications from the Appellant. Appeals are disposed of in above terms.
(Pronounced and dictated in the open court.)
SD/ SD/
(I.P.LAL) (D.M.MISRA)
MEMBER(TECHNICAL) MEMBER(JUDICIAL)
sm
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Appeal No.Cus.Ap.70113-70114/13