Case Law Details
Surya Roshni Ltd. Vs Commissioner of Customs (CESTAT Mumbai)
CESTAT held that Section 149 of the Customs Act, 1962 provides for making amendment to the Bill of Entry. As per the same, the Bill of Entry could have been modified by the Revenue authorities to correct the clerical error made by the appellant under self-assessment or in assessment by the Revenue. The said Bill of Entry was filed on the basis of commercial invoice indicating number of quantity as 2760 pieces of Backlit LED Panel, whereas on the Bill of Entry the total quantity has been mentioned as 5520 pieces. The error is evident as the invoice number is also matching. These errors can be considered for making amendment as provided for under Section 149.
FULL TEXT OF THE CESTAT MUMBAI ORDER
This appeal is directed against Order-in-Appeal No. 502 (Gr.II)/2021(JNCH)/Appeals dated 22.06.2021 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II, by which the Commissioner (Appeals) has observed as follows:-
“6. Further, whenever mistakes are noticed after submission of documents, amendments to the B/Entry is carried out with the approval of Deputy/Assistant Commissioner. The request for amendment may be submitted with the supporting documents. As per Section 149 of the Customs Act, 1962, ‘no amendment of a bill of entry or a shipping bill or bill of export shall be 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. So, the law allows amendment to a B/E or S/Bill even after the clearance of goods but only on the basis of documents that existed at the time of the clearance of goods. Had the importer or his CHA been cautious, they would have been able to carry out the correction at this stage itself. But they have chosen not to do so for the reasons best known to them.
7. The Appellant has also submitted copies of the following documents in support of their contention of excess payment of duty:
a) Invoice no. GN2019111701 dt. 17.11.2019 for import of 2760 pcs of backlit LED Panel at unit rate of USD 7,10 and total invoice value of USD 19596.
b) Packing List for the above invoice for 2760 pcs (4 pcs X 690 cartons)
c) Bill of Lading no CETGD1912968 with Gross weight 6100 kgs for 690 cartons
d )Goods Receipt Note dt. 21.12.2019
7.1 Though the importer has submitted the abovementioned documents, it is pertinent to mention that these documents would have been of much use, had the importer opted for examination and submitted them at that point of time for co-relating with the goods before Out of Charge by Customs. There is also nothing on record to show correspondence of the importer/CHA with the Customs Authorities informing that such a mistake has occurred during punching of the correct data and steps required to rectify the same.
8. As regards the Appellant’s contention that the assessment order on B/Entry is an appealable order. I observe that due to this only, the appeal has been heard. The Assessing Officer cannot re-open the finalized assessment unless the original assessment is challenged before the appropriate authority in terms of the judgement of ITC Ltd vs CCE. Kolkata 2019(368) ELT 216(SC)) wherein the order of assessment is required to be challenged. Further, I find that, the Appellant instead of correcting the data punching error at the initial stage of filing of B/Entry or before clearance of the goods, has resorted to filing an appeal for amendment in the B/Entry, that too when the goods have not been examined and are not in the custody of Customs and it is not possible to arrive at the no of pieces of Backlit LED Panels’ in the consignment.
9 Further, I also place reliance in the case of Prem Nath Diesels (P) Itd. vs Collector of Customs, Calcutta, Final Order No. C/597/96-B, dated 30-7-1996 in Appeal No C/504/88-B, reported in 1996 (86) E.LT. 668 (Tribunal) wherein it has been held that Refund claim seeking re-classification rightly rejected when goods assessed according to the declaration made by the Importer Subsequent claim for re-classification after clearance of goods rightly rejected as goods not available for verification. If in the absence of examination of the consignment to determine the correct quantity of the goods and subsequently the correct duty, I am constrained to reject the appeal of M/s Surya Roshni Ltd.. Thus the appeal no. S/49-186/2020/Misc/JNCH/A-II filed by M/s Surya Roshni Ltd. is disposed off accordingly.”
2.1 Appellant filed two Bills of Entry, as detailed below, against a common purchase order for importing 5520 pieces of Backlit LED Panel having unit price of USD 7.10:-
| Bill of Entry
No. |
Date | Quantity | Value in USD |
| 5914043 | 02.12.2019 | 2760 | 19596.00 |
| 5951438 | 05.12.2019 | 2760 | 19596.00 |
| Total | 5520 | 39192.00 |
2.2 However, while filing Bill of Entry dated 05.12.2019, the appellant wrongly indicated the number of pieces imported and total assessable value on the basis of gross value of the entire purchase order and the Bill of Entry was assessed accordingly, although the unit price and have been mentioned correctly on the Bill of Entry.
2.3 When the appellant noted the said error, they approached the Revenue for modification of the Bill of Entry. The Assistant Commissioner vide his letter dated 27.01.2020, observed as follows:-
“Your kind attention is invited to judgment having Civil Appeal No. 293294 of 2009 wherein Hon’ble Supreme Court of India held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act.”
2.4 Accordingly as directed by the jurisdictional Assistant Commissioner, the appellant filed an appeal to the Commissioner (Appeals) which has been disposed of as indicated in para 1 above. Hence this appeal.
3.1 I have heard Shri R.S. Sharma, Advocate, for the appellant and Shri Manoj Kumar, Deputy Commissioner, Authorised Representative, for the Revenue.
3.2 Considered the impugned order along with the submissions made in appeal and during the course of argument.
3.3 Section 149 of the Customs Act, 1962 provides for making amendment to the Bill of Entry. As per the same, the Bill of Entry could have been modified by the Revenue authorities to correct the clerical error made by the appellant under self-assessment or in assessment by the Revenue. The said Bill of Entry was filed on the basis of commercial invoice indicating number of quantity as 2760 pieces of Backlit LED Panel, whereas on the Bill of Entry the total quantity has been mentioned as 5520 pieces. The error is evident as the invoice number is also matching. These errors can be considered for making amendment as provided for under Section 149.
3.4 In my view, the matter needs reconsideration by the original authority for amending the Bill of Entry accordingly and reassessing the same.
4.1 Accordingly the matter is remanded back to the original authority with the direction to consider the application made under Section 149 of the Customs Act on the basis of documents submitted, as per law.
4.2 All consequences as a result of order made on the application under Section 149 should flow to the appellant.
4.3 In remand proceedings, the authority should decide the matter within three months of receipt of this order.
4.4 Appeal allowed by way of remand.
(Order pronounced in the open court)
