Case Law Details
Sinochem India Company Pvt. Ltd. Vs Union of India & Ors. (Bombay High Court)
In Sinochem India Company Pvt. Ltd. v. Union of India & Ors. [Writ Petition (L) No. 13894 of 2021] and in Hindustan Unilever Ltd. v. The Union of India & Ors, [Writ Petition (L) No. 8163 of 2021] involve a common question of fact and law and have been heard together, the common conflict herein is regarding amendment of Bill of Entry (“BOE”), seeking amendment in GSTIN and the address in the BOE.
The Department submitted that once the goods are ‘out of charge’, any application for amendment cannot be entertained in exercise of power conferred by Section 149 of the Customs Act, 1962 (“the Customs Act”).
The Hon’ble Bombay High Court relied upon the decision in the case of Dimension Data India Private Ltd. v. Commissioner of Customs and Anr. [Writ Petition (L) No. 249 of 2020 dated January 18, 2021] which correctly interprets Section 149 ibid and wherein it was held that amendment to the Bill of Entry is clearly permissible even in a situation where the goods are cleared.
Further, held that the Sinochem India Company Pvt. Ltd. and Hindustan Unilever Ltd. (“the Petitioners”) had prayed for amendment of documents only, which is squarely covered under Section 149 of the Customs Act, any deficiency in the system cannot be used by the Department 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 amendment. The grounds for not allowing amendments are clearly untenable and hence, judicial interdiction for securing justice in the present cases is considered necessary.
Petition disposed of by directing the Department to consider the applications for amendment of the documents of the respective Petitioners 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.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. These two writ petitions involve common questions of fact and law; hence, the same have been heard together and shall stand disposed of by this common order.
2. The petitioner in Writ Petition (L) No. 13894 of 2021 has prayed for, inter alia, the following relief: –
“(a) To issue writ of Mandamus or any other appropriate writ, order or direction directing the Respondent Nos. 2 to 6 to allow the amendment of BOE as requested by the Petitioner vide the emails and the letters and amend the GSTIN and the address in the BOE dated August 07, 2020;”
The right that the petitioner seeks to enforce, according to Ms.Rathi, learned advocate representing it, flows from section 149 of the Customs Act, 1962 (hereinafter “the Act” for short)
3. The petitioner in Writ Petition (L) No. 8163 of 2021 seeks an order for quashing of the impugned order dated December 18, 2018 of the respondent no.6, i.e., Assistant Commissioner of Customs, EDI Section, JNCH. By such order, the respondent no.6 declined to consider the application of the petitioner for amendment of Bill of Entry under Section 149 of the Act on the ground reading as follows:
“In this regard, it is informed that as per advisory received from Director General (Systems), New Delhi, after `Out of Charge’ no change in GSTIN details is allowed. Therefore, your request for change in GST No. in aforementioned Bill of Entry, after `Out of Charge’, cannot be considered.”
4. Ms. Rathi appearing for the petitioner in Writ Petition (L) No. 13894 of 2021 has relied on the judgment and order dated January 18, 2021 of the coordinate Bench of this Court in Writ Petition (L) No. 249 of 2020 [Dimension Data India Ltd. Vs. Commissioner of Customs & Anr.] wherein, upon consideration of section 149 of the Act, it was ruled as follows:
“18. From a careful analysis of section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods.”
5. Ms. Rathi has also relied on the judgment and order dated March 5, 2021 of the Madras High Court in Writ Petition Nos. 34627 and 34629 of 2019 [Hindustan Unilever Limited vs. Union of India & Ors.], wherein it has been held as follows:
“14. The purpose of transition to the goods and services tax regime is to facilitate the conduct of transactions pan India and all consequences thereof including the seamless availment of credit. The robustness of the information technology system is critical to this venture. It is thus incumbent upon the authorities to ensure that technology is kept up to date in order to facilitate a seamless exchange of data. The impugned order states that ICEA System is limited in its operation and cannot permit any changes once the goods have left for home consumption. This is clearly erroneous even in the context of the 1944 Act that envisages amendments to be made even after goods have been cleared. The operation of the 2017 Act cannot go back to the Jurassic age denying an assessee relief that it would have obtained under the earlier enactment. Measures must be put in place for this purpose and till such time this is done, amendment of documents must be considered manually.”
6. Mr.Paranjape, learned advocate for the petitioner in Writ Petition (L) No. 8163 of 2021 has adopted the submissions of Ms. Rathi. In addition, he has placed reliance on the order dated June 23, 2021 of the Gujarat High Court in R/Special Civil Application No.10515 of 2020 [Hindustan Unilever Limited vs. Union of India] and submitted that such order has been complied with by the respondents by allowing the requisite amendment.
7. Mr. Jetly, learned senior advocate appears for the respondents in both the writ petitions.
8. Opposing the submissions made on behalf of the petitioners by Ms. Rathi and Mr. Paranjape, Mr. Jetly has placed reliance on the decision of this Court reported in 2019 (369) E.L.T. 543 (Bom.) [Micromax Informatics Ltd. vs. Union of India] and submitted that once the goods are ‘out of charge’, any application for amendment cannot be entertained in exercise of power conferred by section 149 of the Act. Our pointed attention is drawn to paragraph 30 of the decision in Micromax Informatics Ltd. (supra), where it has, inter alia, been held as follows:
“30. … We may also record that the Counsel for the Department had referred to Section 149 of the Act and contended that it was open for the Petitioner to have bill of entries amended. Section 149 of the Act provides that a proper officer may at his discretion authorize a document after it is presented in the Custom House to be amended. Proviso to Section 149 clearly lays down that no amendment of bill of entry shall be authorized to be amended after imported goods have been cleared for home consumption. Thus, the opportunity to have the bill of entry amended in terms of Section 149 of the Act, was simply not available to the Petitioner.”
9. Mr. Jetly has also drawn our attention to the reply-affidavit of the respondents to Writ Petition (L) No. 13894 of 2021 and submitted that under the Indian Customs EDI System, no amendments in GSTN ID can be made. Since paragraph 4 of the reply-affidavit has been brought to our notice, we quote the same hereunder:
“4. I say that the Petitioners filed Bill of Entry No.8405273 dated 07.08.2020 for import of “Butachlor Tech 95% w/w’. In the Bill of Entry, the Petitioners had given their Delhi Unit address mentioned as `Sinochem India Company India Pvt. Ltd., Bearing No.4H & 4J, 4th Floor, M-6, Plaza Jasola District Centre, Jasola, New Delhi with GSTIN [Goods and Service Tax Identification Number] 07AALCS6343N9ZI registered in Delhi. A copy of Bill of Entry No.8405273 dated 07.08.2020, is annexed hereto and marked as Exhibit ‘1’. Accordingly, Bill of Entry was cleared from Customs and the data was immediately shared with the concerned GSTIN i.e. Delhi for claiming IGST credit at GST portal.
I say that under the ICES system [Indian Customs EDI System] once Out of Charge / Clearance is given for goods imported and date thereof is transmitted to GSTN, no amendments in GSTN ID can be made in the ICES system. Following the request for amendment/corrections by the Petitioners this Respondent changed the Branch address from Delhi to Vadodara in the Bill of Entry No. 8405273 dated 07.08.2020 is annexed hereto and marked as Exhibit ‘2’, but the request for amendment in the GSTN Portal by the Petitioners could not be acceded to.”
10. Since one of the prayers for amendment of the Bill of Entry of the petitioner in Writ Petition (L) No. 13894 of 2021 has been accepted by the respondents and the address changed from Delhi to Vadodara, what remains for consideration is the other prayer for amendment of the GSTN ID.
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 amendment. 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.
20. All other contentions on merits of the rival claims are left open.
21. No costs.
*****
(Author can be reached at info@a2ztaxcorp.com)
Author Bio
