Amendment can be done of Bill of Entry/ Bill of Shipping/ Bill of Exports: Post clearance of goods for domestic consumption or export
Legal provisions are meant to help the business and not otherwise. The provisions are not legislated to deny the legitimate benefit rather they should be interpreted in a way to help the business in getting their dues. In Customs Act the legislature visualised a situation that in some cases bonafide mistakes may occur at the time of filing of prescribed documents such as bill of entry, bill of shipping, bill of exports etc. But it was conscious that on the happening of bonafide mistakes the importer/exporter/assessee may not suffer and must get its legitimate credit. The consequences of bonafide mistake runs into loss of ITC/refund in case of export, the documents have to be amended so that legitimate credit/refund may not be denied to bonafide importer/exporter. Section 149 of the Customs Act has provision for amendment of documents with a rider that once goods are cleared for home consumption in case of import or has crossed the custom barrier in case of export amendment is not allowed. However, the proviso of Section 149 further clarifies that the amendment can be done even after domestic clearance or export on the basis of documentary evidences. The spirit and intent of section 149 is to facilitate the correction of error where importer/exporter is in a position to establish that such error was inadvertent and bonafide.
Section 149 read as under:
“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 customs 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.”
The provision of section 149 of the Custom Act made it clear that in all cases where the mistakes are bonafide, amendment in the documents has to be allowed and the same can not be refused even on the ground of technical insufficiency. The Hon’ble Madras HC has occasioned to deal with the issue in question in Pasha International V. Commissioner of Customs, Tuticorin 2019 (365) E.L.T. 669 (Mad.) wherein the Hon’ble Court upheld that that,
“a bonafide request of an assessee could not be rejected merely on the basis that the system did not support such request.”
Similar issue again came up before the Madras High Court in Hindustan Unilever Limited v. UOI 2021 (377) E.L.T. 4 (Mad.) where in the Hon’ble Court relying upon the judgement passed by it in Pasha international has once again reiterated that it is incumbent on the authorities to ensure that technology is kept up to date to ensure that technology is kept up to date in order to facilitate seamless exchange of data and further held that:
“13. To say that goods have already been cleared for home consumption and, thus, no amendment may be made, would fall in face of proviso to Section 149 of Customs Act, 1962, which imposes condition to be satisfied by importer if he requests amendment after goods have been cleared Imposition of condition itself means that request for amendment may certainly be considered, subject to satisfaction of condition imposed..
…Phrase ‘on record’ means any documents available with petitioner, contemporaneous with imports must also be taken into consideration to decide the question of existence of error. The Assessing Authority cannot restrict examination only to documents available on record Issue thus stands answered in favour of petitioner.”
The judgments passed by Madras High Court is an excellent piece and this will in coming time provide relief to the assessee who are being denied amendment of genuine error and are harassed due to the technical glitches in the system. Further an assessee i.e. an exporter/importer of goods cannot be denied a substantive benefit due to some technical or human error or lapse. Since ITC is a substantive benefit which has to be availed by an assessee, error in filing of documents or lapse in the ICEGATE portal cannot be taken as an excuse to take away what is a genuine legal right of an assessee. Furthermore, it is to be understood that the legislative intent is more than the purpose of the legislature and the implication of words while framing it. The purpose behind framing any statute is mainly for the public benefit. The main object of interpreting the statute is to ascertain the intention in which a legislation is made.
The Customs Act by way of Section 149 clearly seeks to protect the genuine assessee who by some human error is facing issues. The Department instead of complying with what is mandated to it by the statute, has been acting in a very lackadaisical manner and causing hardship to the genuine assessee. The literal rule of interpretation clearly offers an understanding for cases falling u/s 149 and the Department should work accordingly.
Concludingly, the law allows amendment to a shipping bill/ bill of entry/ bill of export even after the clearance of goods, on the basis of documents that existed at the time of the clearance of goods. Thus, a bonafide assessee should not be made to suffer merely on the ground of technical/human error in making entry in the above stated documents.
Author: Prabhat Kumar and Anjali Jain | Advocates | Rajesh Kumar & Associates
Author Bio
IN an HSS transaction wherein my CHA has filed a WRONG bill of entry unintentionally. He has shown the HSS BUYER AS HSS SELLER AND ALSO SHOWN THE HSS SELLER AS HSS IMPORTER.
Now the OCC is cancelled but the BOE is not getting amended showing data transfered to GST.
How to claim the gst input by HSS buyer.