The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) amendment on the bill of entry under section 149 of the Customs Act, 1962 made before the final assessment of imported goods is valid.
Indian Farmer Fertilizer Cooperative ( IFFCO ),( “the Appellant” ) is engaged in the import of “Di-Ammonium Phosphate” ( “DAP” ). The Appellant imported 47200 MT of DAP out of which 1800MT of DAP capsized while transferring from the mothership to the IFFCO jetty area. A final Assessment was done on the full quantity of 47200 MT and the customs duty was discharged by the Appellant on the full quantity because 1800MT DAP was capsized.
The issue pertains to the amendment in the quantity of DAP imported in the Bill of Entry and therefore the refund of excess duty paid on the 1800 MT DAP that capsized while transferring.
It was the case of the department that the refund claim is time-barred as 1 year has passed after the date of the Final Assessment. On the issue of Re-assessment, the department denied the amendment because as per Section 149, the amendment is not allowable after the goods have been cleared for home consumption and the exception to the section in the shape of the existence of the documentary evidence is also not applicable as the first documentary evidence was presented after the goods were cleared for home consumption.
The appellant pointed out that reassessment was sought by them under Section 149 of the Customs Act. He argued that the conditions mentioned under Section 149 are satisfied and therefore, amendment in the quantity of bill of entry should have been allowed. He argued that documentary evidence was in existence at the time of clearance of goods for home consumption. The Tribunal has held that the time limit prescribed by the CBEC Circular in respect of Section 149 of the Customs Act, 1962 is not binding. He further argued that it has been held that amendment is permissible even after the goods are cleared for home consumption.
He further argued that the goods included in the bill of entry to the extent of 1800 MT cannot be said to be cleared for home consumption as they were not available and never crossed the customs barrier. He argued that it was evident that these 1800 MT of goods never crossed the customs barrier. He further pointed out that the assessment was done provisionally on 08.06.2018.
The appellant filed a bill of entry no. 6711677 dated 08.06.2018 for import of 47200 MT. The bill of entry was assessed provisionally on 08.06.2018 and the document was cleared for home consumption on 11.06.2018. Thereafter the goods were unloaded on barges for transfer from vessel M.V. Ocean Destiny which arrived in Kandla on 09.06.2018. The entire cargo was discharged by M/s Rishi Shipping the stevedoring contractor through barges. The discharge operation commenced on 11.06.2018 and was completed on 24.06.2018. The total quantity discharged was 47200 MT as per the draft survey report. The entire operation was completed with 28 barges. Out of 28 barges one barge namely GIRIJA-3 which was carrying material vide board note No. 16206 dated 13.06.2018 carrying 1800 MT SAP sunk in the sea on 13.06.2018. Therefore the total quantity received by the appellant was 45400 MT.
The said order of the Assistant Commissioner has been upheld by the Commissioner ( Appeals ) because the goods were ordered to be cleared on 11.06.2018 the goods were destroyed on 13.06.2018 and the police report was filed on 15.06.2018. The amendment has been sought on the strength of the police report dated 15.06.2018 which was not available before 11.06.2018 when the goods were cleared for home consumption.
Section 149 of the Customs Act permits amendment to the document filed before the proper officer however it is subject to the condition that no amendment of the bill an entry shipping bill of export, or ship authorization be amended after the import of goods has been cleared for home consumption or deposited in the warehouse or the export goods have been exported, except based on documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the case may be.
The two-member bench comprising of Mr Ramesh Nair, Member ( Judicial ) and Mr Raju, Member ( Technical ) observed that the clearance of goods can only be said to have happened on 21.06.2018 when the bills of entry were finally assessed. From that perspective, the documents presented by the appellant namely the police report dated 15.06.2018 were indeed available before the clearance of the goods and were submitted before clearance of the goods i.e. on 19.06.2018.
The CESTAT held that the amendment to the bill of entry should have been allowed in terms of section 149 of the Customs Act.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
