(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal is filed by the importer challenging the judgment of the Customs, Excise and Service Tax Appellate Tribunal ('Tribunal' for short) dated 31st August 2004. At the time of admission of appeal, following substantial question of law was framed:
“Whether Import General Manifest (IGM) can be permitted to be amended after clearance of goods for home consumption on the basis of documentary evidence, which were in existence at the time of clearance of goods for home consumption, under section 149 of the Customs Act, 1962 ?”
The appeal arises in following factual background.
2. The appellant had imported an old vessel by the name M.T.Sabine Philadelphia for the purpose of breaking. Bill of entry dated 3rd December 2001 was filed for clearance of the vessel, bunker and provisions and the appellant importer paid duty amounting to Rs.2,75,77,622/- on the said import on 4th December 2001 on provisional assessment. It is the case of the appellant that before the final assessment, the appellant realized that the information of quantity of provisions supplied at the time of filing of bill of entry was inaccurate. There was an error in conversion of the supplies from pounds to kilograms and in the process, much higher quantity was declared. On such basis, the appellant's agent filed an application dated 10.12.2001 before the Superintendent of Customs, Bhavnagar. In the application it was stated that the Master of vessel while submitting declaration in form VI had declared various items of food stuff. While converting the quantity of such provisions into kilograms, wrong conversion factor was applied through oversight. It was pointed out that one kilogram is approximately 2.2 pounds. However, incorrect figures were shown on the basis of wrong conversion applied. In the said application, the agent provided the following table giving the quantity of different provisions in pounds and kilograms and those shown in form VI in the Import General Manifest (IMG):
On the basis of the above averments, the agent requested for permission to amend the import manifest.
amendment of the declaration made by the appellant.
4. At the time of final assessment, however, the Deputy Commissioner of Customs, Bhavnagar, did not approve such amendment in the import manifest. He passed a detailed order in this regard on 15.11.02. Before the Deputy Commissioner, the appellant had raised two contentions. It was firstly pointed out that part of the provision was consumed by the crew and the rest was distributed free of cost. This stand, however, for waiver of duty was not accepted. We are not directly concerned with this aspect of the matter. The second aspect presented before the Deputy Commissioner, with which we are directly concerned, was that due to incorrect conversion applied, wrong declaration came to be made regarding weight of the provisions in kilograms. The assessee, therefore, requested for acceptance of the quantities in kilograms shown in the application dated 10.12.01 and for refund of sum of Rs.1,20,083/- relatable to the duty paid on the value of the provisions of the differential quantity.
5. The Deputy Commissioner however, rejected such request. He was of the opinion that the Master of the vessel only referred to the agent's mistake. He had not requested for any amendment in the quantities in the items. Further, no physical verification was done before allowing the amendment. Such amendment was, therefore, wrongly allowed. The same was not in accordance with the provisions of section 30(3) of the Customs Act, 1962. The contention raised by the agent is an afterthought. He also placed reliance on section 149 of the Customs Act and in particular proviso thereto and rejected the appellant's case.
6. Against such order of the Deputy Commissioner, the appellant preferred appeal before the Commissioner of Customs, Ahmedabad. The Commissioner by his order dated 8.10.03 allowed the appeal and ordered refund of Rs.1,20,083/-. He was of the opinion that the mistake had occurred on account of the wrong conversion factor applied. The amendment, therefore, did not violate the provisions of section 149 of the Act.
7. The Department appealed against such decision of the Commissioner before the Tribunal. The Tribunal by order dated 31.8.04 allowed the Department's appeal and set aside the order of the Commissioner on the ground that acceptance of the amendment application by the Superintendent was not as per the provisions of section 149 of the Customs Act. The Tribunal relied on two decisions of the Tribunal in the case of Premnath Diesels Pvt. Ltd, 1997 (91) ELT 130 (Tribunal) and in the case of Steel Authority of India Ltd. Calcutta, 1987 (31) ELT 933 (Tribunal) in this respect. It is this order of the Tribunal which the appellant has challenged in the present appellant.
8. Counsel for the appellant submitted that it was purely an arithmetical error on the part of the agent to have applied a wrong conversion ratio while converting pounds into kilograms which resulted into substantial inflated quantities being declared. He submitted that such apparent error should have been permitted to be corrected. In short, he supported the order passed by the Commissioner and requested that the order of the Tribunal be set aside.
9. On the other hand, learned counsel Ms.Yajnik for the Department placed heavy reliance on the provisions contained in section 149 of the Customs Act. She submitted that once the goods had been cleared for home consumption, unless requirements of proviso to section 149 of the Act were satisfied, no amendment could have been permitted. She submitted that there was no documentary evidence in existence at the time of filing of the import manifest on the basis of which the claim of the appellant could have been accepted. That being the position, the Tribunal committed no error.
10. In addition to the decisions referred to by the Tribunal in the impugned judgment, she drew our attention to a decision of the Division Bench of this Court in the case of Commissioner of Customs v. Jhunjhunwala Vanaspati Ltd., 2008 (232) E.L.T. 600 (Guj.) wherein in the context of the provisions of section 149 of the Customs Act, the Division Bench made the following observations :
“13.1 The law is clear that it is the proper officer who is vested with the discretion to authorise any document after it has been presented in the customs house to allow the party to amend or not. In the opinion of this Court, the authorities – the Commissioner of Customs has not committed any error in rejecting the request of the respondent in light of the facts of the case, which are set out in detail hereinabove.
14. Learned advocate for the respondent paid emphasis on the provisions of Section 149 which reads as under:-
“Provided that no amendment of a bill of entry or 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 ware house, 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.”
(emphasis supplied)
14.1 Learned advocate for the respondent did not give due importance to the word, “shall”. The proviso puts a restriction on the discretion conferred on the proper officer in the main body of Section 149. It cannot be read that proviso mandates the exercise of discretion in favour of a party so as to allow the party to amend the documents if the eventualities set out in the proviso have not taken place. In fact, discretion is absolute and the proviso only provides that if the eventualities set out therein have taken place then the discretion is curtailed of the same cannot be raised even when it is vested in the proper officer if those eventualities have taken place.”
11. Counsel pointed out that the said decision was carried in appeal by the assessee before the Supreme court. However, such appeal was withdrawn.
12. Section 149 of the Customs Act pertains to amendment of documents and reads as under:
“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:
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.”
Upon perusal of the provisions, it emerges that proper officer has discretion to authorize amendment of any document after the same is presented in the custom house. Such discretion is controlled through proviso to the said section which provides that no amendment of bill of entry or a shipping bill or bill of export shall be so authorized 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. It is of course, true that such provision contained in section 149 is made save as otherwise provided in sections 30 and 41 of the Customs Act. Section 30(3) of the Act provides that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete and that there is no fraudulent intention, he may permit it to be amended or supplemented. Sub- section (3) of section 30, in our opinion, permits, the proper officer to correct incorrections or provide for incompleteness in any import manifest or import report. The errors that can be corrected under sub-section (3) of section 30 would essentially be of the nature which can be described as incorrections or incompleteness. In such case, the rigours provided in proviso to section 149 may not apply and in absence of contemporaneous document also, such error can be allowed to be corrected. Section 149, however, covers wider range of cases of amendment of documents. In such case, the proper officer is granted discretion to permit such amendment. Such discretion, however, is curtailed under the proviso to section 149 which would permit amendment of bill of entry in respect of goods which have already been cleared for home consumption only on the basis of documentary evidence which was in existence at the time the goods were cleared. Present case clearly does not fall under section 30(3) of the Act. The appellant could succeed only if it is shown that there was document in existence when the goods were cleared pointing out the error claimed to have crept in in the declaration made. This is also the view of the Division Bench of this Court in the case of Jhunjhunwala Vanaspati Ltd (supra).
13. From the record it clearly emerges that the appellant had no contemporaneous documentary evidence to suggest that the weight of the different provisions declared in the import manifest was incorrect. Though in the application dated 10.12.2001, the shipping agency has referred to a declaration made by the Master of vessel in form No.VI indicating the weight of the provisions in pounds, no such documents has been produced before the authorities or even before us. Under the circumstances, all that we have on record is the application of the shipping agent contending that the actual weight of the provisions was considerably different from what was declared at the time of import, on the basis of which, on the strength of provisional assessment, the goods were cleared.
14. In view of the above, the Tribunal, in our view, committed no error in allowing the Revenue's appeal. In absence of any documentary evidence existing at the relevant time, in terms of provisions of section 149 of the Customs Act, the application for amendment could not have been granted.
15. Under the circumstances, though the question as framed may receive an affirmative answer, nevertheless in the facts of the case, in our opinion, the Tribunal committed no error in applying the correct legal position, the appeal is required to be and is hereby dismissed.
(Akil Kureshi, J.) (Harsha Devani, J.) (vjn)