Commissioner of Customs Vs Emami Agrotech Ltd (Calcutta High Court)
Calcutta High Court held that allowing application for withdrawal/cancellation of Ex. Bond bill of entry and re-instatement of into-bond bill of entry without referring the provisions of the Customs Act under which the permitted is not justifiable. Accordingly, order set aside.
Facts- This appeal has been filed by the Commissioner of Customs (Port) against the final Order dated 26.06.2024 passed by the Customs, Excise and Service Tax Appellate Tribunal u/s. 130 of the Customs Act, 1962.
It is mainly contested that the Learned Tribunal failed to consider that section 46 (5) does not deal with the cancellation of any bill of entry but just deals with mere modification of the type code of bill of entry. Since in this case, type code of bill of entry is not getting modified but cancellation of the same is under consideration, therefore, importer’s request for withdrawal/cancellation of Ex-bond Bill of Entry and reinstatement of into-bond Bill of Entry cannot be considered under section 46 (5) of the Customs Act,1962.
Conclusion- Held that the learned tribunal in our considered view, committed an error in not addressing the legal issue which fell for consideration, whether the power under Sub Section (5) of Section 46 was exercisable, in the facts and circumstances of the case and whether the interest is payable or not is not the question which is germane to the issue which fell for consideration before the learned tribunal. The learned tribunal has allowed the application filed by the respondent importer for withdraw/cancellation of the Ex. bond bill of entry and re-instatement of Into-bond bill of entry, however it has not referred to under which provisions of law or in other words under which provisions of the Customs Act this was permissible. Further the finding that there was no loss of revenue also is devoid of any reasons and the learned tribunal was swayed by the date of the respondents letter dated 08.10.2021 stating that on the said date there were no change of rate of duty. Unfortunately, the questions is not as to what was the rate of duty on 08.10.2021 but the question was whether a request by way of a letter dated 08.10.2021 for cancellation of self-assessed bill of entry for home consumption was maintainable under the provision of the Customs Act. Therefore, this finding rendered by the tribunal also does not satisfy the legal principle. Hence, the learned tribunal erred in allowing the respondent’s appeal and the impugned order, calls for interference and accordingly interfered with and set aside.
