Case Law Details
Hindustan Unilever Limited Vs Union of India And Ors (Bombay High Court)
Petitioner is impugning an order dated 29th October 2021 passed by respondent no.3 rejecting petitioner’s application for amendment of the 13 bills of entry that petitioner had filed when importing certain goods. It is petitioner’s case that in the bills of entry as filed petitioner had erroneously given a particular Goods and Services Tax Identification Number (GSTIN), whereas it should be some other GSTIN. It is also petitioner’s case that when similar errors were committed by petitioner within the jurisdiction of other Commissionerates, those Customs Commissionerates have permitted petitioner to amend the bills of entry under Section 149 of the Customs Act, 1962.
In 9 out of the 13 bills of entry, petitioner had mentioned GSTIN of the plant at Himachal Pradesh where the imported goods were sought to be consumed. The Input Tax Credit (ITC) of Integrated Goods and Services Tax (IGST) was taken by petitioner in the importing State, i.e., in Maharashtra, where the goods were imported into and duly reflected in the appropriate GSTR-3B returns filed in the State of Maharashtra. It is petitioner’s case that it has not taken any ITC of IGST based on such bills of entry in the State of Himachal Pradesh where the plant is located or at any other location.
On the remaining 4 bills of entry, petitioner had mentioned the GSTIN of the plant at Uttarakhand where the imported goods were sought to be consumed. However, the ITC of IGST was taken in the State of Maharashtra where the goods were imported based on the bills of entry and duly reflected in the GSTR-3B returns filed in the State of Maharashtra.
At a later stage when petitioner realised the error, petitioner applied for amendment under the provisions of Section 149 of the said Act to amend the 13 bills of entry. As petitioner’s application was rejected vide a letter dated 18th December 2018 from the Assistant Commissioner of Customs, EDI Section, Jawaharlal Nehru Custom House (JNCH), petitioner approached this Court by filing a writ petition being Writ Petition (lodging) No.8163 of 2021.
In our considered opinion, the decision in Dimension Data India Private Ltd. (supra) correctly interprets section 149 and we share the view expressed therein that amendment to the Bill of Entry is clearly permissible even in a situation where the goods are cleared.
Although the opening words of section 149 say that, “save as otherwise provided in sections 30 and 41”, it has not been demonstrated before us that such other provisions in the Act do stand in the way of the respective petitioners’ prayers for amendment; also that, the amendments sought for by them cannot be allowed because such amendment is requested on the basis of documentary evidence which were not in existence at the time of clearance of the goods. Given such situation, coupled with the fact that the petitioners had prayed for amendment of documents only, which is squarely covered under section 149 of the Act, any deficiency in the system cannot be used by the respondents as a shield so as to deny relief to a party; if indeed the system does not permit, the deficiency has to be covered up manually until improvements are effected in the system for such We also record not having been shown from the reply-affidavit that even a manual amendment is not possible.
The grounds for not allowing amendments are clearly untenable and hence, judicial interdiction for securing justice in the present cases is considered necessary.
Despite the matter being remanded, respondent no.3 instead of considering the application under Section 149 of the said Act, as per the provisions therein, has gone in a tangent and rejected the application on totally untenable grounds. According to respondent no.3, in short the GST Laws does not permit such amendment post clearance from Customs under Section 149 of the said Act.
In our view, while considering application under Section 149 of the said Act, if the goods have been cleared for home consumption, which in this case has been, the proper officer has to only consider the documentary evidence which was in existence at the time the goods were cleared and nothing more. There is nothing to indicate in the impugned order that petitioner had not submitted the documentary evidence which was in existence at the time the goods were cleared. Such a ground has also not been taken when petitioner had approached this Court in the earlier round and, therefore, in our view, there cannot be any impediment to grant petitioner’s request for amending the bills of entry.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. Since the pleadings are completed, by consent, petition is taken up for disposal at the admission stage itself.
2. This is the second round of litigation for petitioner on the same issue of amendment of documents under Section 149 of the Customs Act, 1962 (the said Act).
3. Petitioner is impugning an order dated 29th October 2021 passed by respondent no.3 rejecting petitioner’s application for amendment of the 13 bills of entry that petitioner had filed when importing certain goods. It is petitioner’s case that in the bills of entry as filed petitioner had erroneously given a particular Goods and Services Tax Identification Number (GSTIN), whereas it should be some other GSTIN. It is also petitioner’s case that when similar errors were committed by petitioner within the jurisdiction of other Commissionerates, those Customs Commissionerates have permitted petitioner to amend the bills of entry under Section 149 of the said Act.
4. In 9 out of the 13 bills of entry, petitioner had mentioned GSTIN of the plant at Himachal Pradesh where the imported goods were sought to be consumed. The Input Tax Credit (ITC) of Integrated Goods and Services Tax (IGST) was taken by petitioner in the importing State, i.e., in Maharashtra, where the goods were imported into and duly reflected in the appropriate GSTR-3B returns filed in the State of Maharashtra. It is petitioner’s case that it has not taken any ITC of IGST based on such bills of entry in the State of Himachal Pradesh where the plant is located or at any other location.
5. On the remaining 4 bills of entry, petitioner had mentioned the GSTIN of the plant at Uttarakhand where the imported goods were sought to be consumed. However, the ITC of IGST was taken in the State of Maharashtra where the goods were imported based on the bills of entry and duly reflected in the GSTR-3B returns filed in the State of Maharashtra.
6. At a later stage when petitioner realised the error, petitioner applied for amendment under the provisions of Section 149 of the said Act to amend the 13 bills of entry. As petitioner’s application was rejected vide a letter dated 18th December 2018 from the Assistant Commissioner of Customs, EDI Section, Jawaharlal Nehru Custom House (JNCH), petitioner approached this Court by filing a writ petition being Writ Petition (lodging) No.8163 of 2021.
7. The petition came to be allowed by directing respondent no.3 to consider the applications for amendment of the documents in the light of observations made in the said order dated 15th September 2021 passed by this Court. It will be useful to reproduce paragraphs 11 to 19 of the said order, which read as under :
11. Insofar as Writ Petition (L) No. 8163 of 2021 is concerned, we are called upon to examine the legality of the impugned order dated December 18, 2018 in the light of section 149 of the Act and its interpretation by this Court and the other Courts in the decisions referred to above.
12. For facility of convenience, section 149 of the Act, as amended by the Finance Act of 2021, reads as follows:
“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 in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed. 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. Provided further that such authorisation or amendment may also be done electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria.
Provided also that such amendments, as may be specified by the Board, may be done by the importer or exporter on the common portal.”
13. The second and third provisos have been incorporated in section 149 by way of amendment; however, such amendments do not have the effect of stultifying the prayers made by the respective petitioners. The decision in Micromax Informatics Ltd. (supra), with due respect, proceeds to read the only proviso to section 149 (as it then stood) in a constricted manner as if the words “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” are not there in such proviso. However, it could be so that the interpretation placed by the Court on the first proviso is correct for the purpose of determination of the issue arising for decision therein, i.e., rejection of the petitioner’s refund claims for the period between July 2014 and June 2015. We, therefore, hold that such interpretation of section 149 as made by the coordinate Bench turns on the facts and circumstances of the case before it.
14. In our considered opinion, the decision in Dimension Data India Private Ltd. (supra) correctly interprets section 149 and we share the view expressed therein that amendment to the Bill of Entry is clearly permissible even in a situation where the goods are cleared.
15. The decision in Hindustan Unilever Limited (supra) decided by the Madras High Court in our further considered opinion does make pertinent observations to the effect that measures must be put in place so that an assessee is not denied relief in an appropriate case merely because the system does not permit it and that till such time measures are taken to equip the system appropriately, amendment of documents must be considered manually.
16. As it appears from the decision in Hindustan Unilever Limited (supra) decided by the Gujarat High Court, counsel appearing for the respondents had submitted that they would have no objection if the request of the petitioner to amend the GST details in the Bills of Entry was directed to be considered afresh after giving the petitioner opportunity to prove its documents qua the amendment sought in the light of section 149 of the Act. Since the petitioner in Writ Petition (L) No. 8163 of 2021 was the same petitioner before the Gujarat High Court, we may accept the statement of Mr. Paranjape that the order dated June 23, 2021 has since been complied with. What is of importance in this regard is that the respondents before the Gujarat High Court did not raise the argument that amendment in the Bill of Entry is not permissible in terms of section 149 of the Act. We cannot allow the same set of respondents to prevaricate and take divergent stands before different High Courts.
17. Although the opening words of section 149 say that, “save as otherwise provided in sections 30 and 41”, it has not been demonstrated before us that such other provisions in the Act do stand in the way of the respective petitioners’ prayers for amendment; also that, the amendments sought for by them cannot be allowed because such amendment is requested on the basis of documentary evidence which were not in existence at the time of clearance of the goods. Given such situation, coupled with the fact that the petitioners had prayed for amendment of documents only, which is squarely covered under section 149 of the Act, any deficiency in the system cannot be used by the respondents as a shield so as to deny relief to a party; if indeed the system does not permit, the deficiency has to be covered up manually until improvements are effected in the system for such We also record not having been shown from the reply-affidavit that even a manual amendment is not possible.
18. The grounds for not allowing amendments are clearly untenable and hence, judicial interdiction for securing justice in the present cases is considered necessary.
19. We grant an order in terms of prayer (a) in Writ Petition (L) No. 8163 of 2021. We also partially allow Writ Petition (L) No. 13894 of 2021. Writ Petition (L) No. 8163 of 2021 as well as Writ Petition (L) No. 13894 of 2021 are disposed of by directing the concerned respondent to consider the applications for amendment of the documents of the respective petitioners in the light of the observations made hereinabove as well as in accordance with law, upon granting the authorized representative of the petitioners an opportunity of hearing, as early as possible but not later than four weeks of receipt of a copy of this order. Should the concerned respondent refuse to grant the prayer for amendment, it is needless to observe that a reasoned order shall be passed and communicated to the petitioners. On the contrary, if the prayer for amendment is granted, follow-up steps shall be taken without any delay.
(emphasis supplied)
8. Despite the matter being remanded, respondent no.3 instead of considering the application under Section 149 of the said Act, as per the provisions therein, has gone in a tangent and rejected the application on totally untenable grounds. According to respondent no.3, in short the GST Laws does not permit such amendment post clearance from Customs under Section 149 of the said Act.
9. In our view, while considering application under Section 149 of the said Act, if the goods have been cleared for home consumption, which in this case has been, the proper officer has to only consider the documentary evidence which was in existence at the time the goods were cleared and nothing more. There is nothing to indicate in the impugned order that petitioner had not submitted the documentary evidence which was in existence at the time the goods were cleared. Such a ground has also not been taken when petitioner had approached this Court in the earlier round and, therefore, in our view, there cannot be any impediment to grant petitioner’s request for amending the bills of entry.
10. The impugned order dated 29th October 2021 is hereby quashed and set aside. Respondent no.3 is hereby directed to permit amending the bills of entry as per Section 149 of the said Act in terms of prayer clause – (b), which reads as under :
(b) Your Lordships be pleased to issue a writ of Mandamus, or a writ in the nature of Mandamus, or any other appropriate writ, order or direction, directing the Respondents to forthwith permit the Petitioner to amend 13 Bills of Entry (detailed in Exhibit B hereto) by substituting the existing GSTIN Number with GSTIN No.27AAACH1004N1ZU and existing address with “17th Floor, Uttara, Plot No.2, Sector 11, CBD Belapur, Navi Mumbai, Thane, Maharashtra 400 614.
11. Petition disposed accordingly.
