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CHARGING OF LATE FEES UNDER SECTION 46 OF CUSTOMS ACT, 1961 IN ADJUDICATION ORDER

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CHARGING OF LATE FEES UNDER SECTION 46 OF CUSTOMS ACT, 1961 IN ADJUDICATION ORDER
Mr.M. GOVINDARAJAN By: Mr.M. GOVINDARAJAN
August 1, 2022
All Articles by: Mr.M. GOVINDARAJAN       View Profile
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Entry of goods on import

Section 46(1) of the Customs Act, 1962  provides that the importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting electronically on the customs automated system] to the proper officer a bill of entry for home consumption or warehousing in such form and manner as may be prescribed.  The Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, on the customs automated system] allow an entry to be presented in any other manner.  If the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof to examine the goods in the presence of an officer of customs, or to deposit the goods in a public warehouse appointed under section 57 without warehousing the same.

Section 46(3) provides that the importer shall present the bill of entry before the end of the day (including holidays) preceding the day on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing.  The Board may, in such cases as it may deem fit, prescribe different time limits for presentation of the bill of entry, which shall not be later than the end of the day of such arrival.   A bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India.

The importer while presenting a bill of entry shall  make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, and such other documents relating to the imported goods as may be prescribed.  The importer who presents a bill of entry shall ensure the following-

  • the accuracy and completeness of the information given therein;
  • the authenticity and validity of any document supporting it; and
  • compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.

Late fee

Where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed.

In ‘The Principal Commissioner of Customs, Pune v. JSW Steel Limited’ – 2022 (7) TMI 1200 – Bombay High Court, the respondent, in the present appeal, and its subsidiary Amba River Coke Ltimited (‘ARCL’ for short) imported a total 1,10,000 metric tons Coking Coal from JSW International Pty Ltd., Singapore.   An Import General Manifest (IGM No.2161880) was filed on 6th April, 2017.  ARCL imported 11,550 metric tons of Peak Down North Coking Coal under Bill of Entry dated 7th April, 2017 filed at Jaigad Port and was assessed provisionally.   The respondent  imported 98,450 metric tons of Goonyella C Coking Coal for discharge at Marmagao Port which arrived on 14.07.2017 and Bill of Entry dated 20.04.2017 was filed at Marmagao Port for clearance which was provisionally assessed and allowed clearance on payment of duty of Rs.9,32,79,393/-.

A quantity of 1,341 metric tons was found short at Marmagao Port as the same was landed at Jaigad Port, which  was not assessed at Marmagao Port and left uncleared at Jaigad Port.  The respondent, vide its letter dated 05.12.2017, informed the Customs Authorities of the same and that the said 1,341 metric tons of Goonyella C Coking Coal which was to be discharged at Marmagao Port, Goa had been wrongly discharged at Jaigad Port for which the respondent had paid duty at Marmagao Customs, presuming that full quantity of import would be cleared at Marmagao Port.  It was also requested to they allow them to file a Bill of Entry for a differential quantity and that the said cargo may be allowed clearance.   The Department changed the IGM but kept in the name of ARCL.  Despite the amendment the Bill of Entry could not be filed through ICE GATE system.  Finally the Bill of Entry was approved by the Department and the respondent filed the Bill of Entry to clear the goods.

The Electronic Data Interchange calculated the total amount payable by the respondent as Rs.50.46 lakhs which includes the late fee Rs.33.45 lakhs.  The respondent requested the department to waive off the late fee charged since there was no fault at their end.  The Department rejected the contention of the respondent.    The Authority held that the respondent itself delayed the process of amendment of IGM /filing B/E. The said instructions could have been given well in time. Therefore the entire responsibility for late filing of B/E lies on the importer i.e. M/s JSW Steel Ltd.

Being aggrieved against the said order the respondent filed an appeal before the Commissioner (Appeals).  The respondent submitted the following before Commissioner (Appeals)-

  • The delay in filing the Bill of Entry was in genuine and bona fide.
  • The Importer is supposed to present the Bill of Entry before the end of the next day following the day of which the vessel carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing. 
  • The Bill of Entry for home consumption was filed within a time at Marmagao.
  • At the time of clearance, a quantity of 1,341 metric tons was found short.
  • It was confirmed under the Draught Survey Report and that, on enquiry, it was found that the subject goods were wrongly manifested as Peak Down North Coking Coal instead of Goonyella C Coking Coal in the name of ARCL and only on 14.03.2018.
  • An amended IGM and the Bill of Lading in the name of the Respondent, describing the goods as Goonyella C Coking Coal were issued by the Shipping Line after obtaining permission from the Customs.
  • The Bill of Entry was filed by the respondent  immediately on 14.03.2018 for clearance at Jaigad Port, that therefore no late fee was payable.

The Commissioner (Appeals) allowed the appeal filed by the respondent.  The Commissioner (Appeals) held this was not a fit case to charge late fee and the Respondent-Company should not be penalized.  The Commissioner (Appeals) observed that the Authority finally approved all the amendments in the IGM on 14-03-2018 and the respondent  filed the Bill of Entry on that very day, which established the bona fide of the respondent  in ensuring that no untoward delay is caused at their end to clear 1,341 MT of goods short landed at Marmugao Port. The Commissioner (Appeals) held that the late fee charged of Rs. 33,45,000/- is totally unwarranted in the present circumstances.

Against the order of Commissioner (Appeals) the Department filed an appeal before the Tribunal.  The Tribunal upheld the order of Commissioner (Appeals).  Against this order the Department filed the present appeal before the High Court.  The Department submitted the following before the High Court-

  • There has been a delay in the filing of the Bill of Entry by the respondent from 14.04.2017 to 05.12.2017 and as such, there is a breach of Section 46(3) of the Customs Act, 1962 inviting levy of late filing charges.
  • The late fee has been correctly levied.
  • Even though the Instruction No.12/2017 –Customs, dated 31.08.2017 clarifies that the Importer should not be penalized for delay happening due to system related fault, Petitioner could not get the benefit of such Instruction inasmuch as the delay in filing the Bill of Entry is not due to system fault, but due to the omission by Petitioner. 
  • The said Instruction is available only in bona fide cases and submits that which is not the case here.
  • Since the Tribunal has merely relied on the order of the Appellate Authority, it is a non-speaking order and ought to be set aside as being without application of mind.

The respondent submitted the following before the High Court-

  • The lower authorities ought to have considered that the Respondent-Company had already paid the payable Customs duty on the entire quantity of goods at Marmagao Port.
  • For no fault of the Shipping Line, the respondent  had to pay the additional duty for the same goods at Jaigad Port also and is now being forced to incur other collateral expenses in the form of late fee at Jaigad Port.
  • There were sufficient genuine and bona fide causes for waiver of late filing fee.

The High Court heard the submissions put forth by the parties to the present appeal.  The High Court analyzed the provisions of Section 46 of the Customs Act.  The High Court observed that  an Importer is to present a Bill of Entry for home consumption or for warehousing in the prescribed form before the end of the next day following the day on which, the vessel carrying the goods arrives at a customs station at which such goods are to be cleared.  A period of thirty days is allowed  for presentation of an advance bill of entry.   Where the Bill of Entry is not presented within the time, and the proper officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed.

The High Court observed that in the present case the respondent  had filed the Bill of Entry for the entire quantity on 20.04.2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant department on 14.08.2018.   The respondent  filed the Bill of Entry on the very same day in respect of 1,341 metric tons.  The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges.  The High Court held that the said order has been rightly set aside by the Appellate Authority and the Tribunal.  Therefore the High Court dismissed the appeal filed by the Department.

 

By: Mr.M. GOVINDARAJAN - August 1, 2022

 

 

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