Custom
TRT-2025-
Cestat Ahmedabad
Date:-18-10-22
In:-
Issue Favourable to Tax Payer ?:-
Date of Order : 18.10.2022
Facts:
- The Appellant, ABARIS HEALTHCARE PVT LTD, filed a Bill of Entry for clearance of imported goods viz. LDPE Innoplus LD 2420, availing the benefit exemption under Notification No. 12/2012 for payment of basis customs duty at 7.5%. Accordingly, the Assessment Authority assessed the bill of entry.
- The appellant requested the assessment authority but request cannot be entertained to extend the benefit.
- The Ld. Commissioner (Appeals) vide impugned order dtd. 07.11.2014 upheld the decisions of the original.
- Department contended that the country of origin was not available at the time of assessment and clearance whereas the provisions of Section 146 of the Act ibid requires the existence of documentary evidence at the time of clearances of the goods which were not available.
- The appellant is claiming amendment and consequent re-assessment of the bill of entry since the benefit dated 01.06.2011 was available to the Appellant and in existence at the time of filing of the bill of entry.
Issue:
- Whether the Appellant is eligible for amendment and consequent re-assessment ?
Order:
- The Tribunal observed that as far as Section 149 is concerned, amendment is to be allowed on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported. The only restriction is Sections 30 and 41 of Customs Act, 1962 which relates to export and import manifest which are not allowed to be amended off when there is a fraudulent intention.
- The authorities observed that apparently, there was an error, on the part of the CHA who inadvertently mentioned Notification No. 12/2012- Customs and accordingly discharged 7.5% 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.
- In the case of Hero Cycles v. Union of India reported in 2009 (240) E.L.T. 490 (Bom.) the hon'ble Bombay High court observed that 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. 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.).
- The authorities considered that the impugned order is not sustainable in law 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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