Case Law Details
Abaris Healthcare Pvt. Ltd. Vs C.C. Ahmedabad (CESTAT Ahmedabad)
In the case on hand, from the material on records, we could see that apparently, there was an error, on the part of the CHA who inadvertently mentioned Notification No. 12/2012- Customs and accordingly discharged 5% customs duty., whereas, the benefit of Notification No. 46/2011 was available to the Appellant. Section 154 and 149 of the Customs Act, 1962, postulates the intention of the legislature, and any correction could be made.
As per above Sections, an importer has a right to make amendments in the Bills of Entry covering imported goods assessed and cleared for home consumption or deposit in a warehouse, if he satisfies the condition prescribed in the said Section that such amendments are sought on the basis of documentary evidence which was in existence at the time the goods had been cleared/deposited. In the instant case amendments to the Bills of Entry sought to be made are not on the strength of any new document. This right of the importer is not removed or whittled down by the judgments in the case of Priya Blue Industries Ltd. CC which is relied upon by the Ld. Commissioner (Appeals). This issue was not before the Apex Court when their lordships had passed the said judgment. The judgment in the case of Priya Blue Industries Ltd. is not applicable as Section 149 and 154 of the Customs Act, independent, provides for correction of mistakes in any decision or order by an officer of Customs.
We also find that in Hero Cycles Union of India reported in 2009 (240) E.L.T. 490 (Bom.), the Hon’ble Bombay High Court, held that the mere fact that there was an inadvertent error, on the part of the importer, in not claiming benefit of exemption notification, cannot result in denial of the said benefit. Hon’ble Bombay High Court held that a duty is cast on the authorities, to assess the goods and impose duty, in accordance with law. High Court also held that, duty cannot be demanded, if it is otherwise not payable. Said Court has held that once there is a power to assess, there is a corresponding duty, to assess, in accordance with law. Against this order, the Revenue preferred an appeal before the Hon’ble Apex Court, and that the same was rejected in Union of India v. Hero Cycles reported in 2010 (252) E.L.T. A103 (S.C.).
Hence, by following the ratio of the above decisions we are of the considered view that the impugned order is not sustainable in law and is set aside by allowing the appeal of the appellant with the direction to the assessing officers / original authority that the request of the appellant for reassessment be considered for amendment of Bill of Entry and appropriate order be passed in accordance with law after giving an opportunity of hearing to the appellant. Appeal is allowed by way of remand to the original authority.
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