TMI Blog2018 (1) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... itions that may be fulfilled either before or after clearance of imported goods for home consumption. Further, such conditions could be specified by way of notification - It has then been stated that the Central Government had in exercise of powers vested under Section 25(1) of the Act issued general exemption notification no. 151 of 2009 dated 31.12.2009. A bare perusal of the notification demonstrates that the goods specified thereunder had been made exempt from payment of duty liability subject to the importer (i.e. the assessee in this case), proving to the satisfaction of the designated custom authority that the goods in respect of which the benefit of exemption had been claimed originated from the Republic of Korea. Section 149 of the Act does clearly provide for a scheme wherein though the 'Bill of Entry' may be amended after clearance of the goods for home consumption yet, such amendment may be made only on the basis of documentary evidence that may have been in existence at the time when the goods were so cleared and not on the basis of any document prepared thereafter. The section is thus plain and very clear in its language and does not admit of any doubt that the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to claim exemption. The stipulation of Section 149 of the Act or any other provisions incorporated under the Act or the Rules for compliance of duty payment may not stand in the way of the assessee to claim exemption under Section 25 of the Act. Appeal dismissed. - Custom Appeal No. 280 of 2017 - - - Dated:- 12-12-2017 - Hon'ble Bharati Sapru And Hon'ble Saumitra Dayal Singh, JJ. For the Appellant : Parv Agarwal For the Respondent : Nishant Mishra ORDER Heard Sri Parv Agarwal, learned counsel for the revenue and Sri. M.P. Devnath alongwith Sri Nishant Mishra, learned counsel for the assessee. This appeal has been filed by the revenue under Section 130 of the Customs Act, 1962 (hereinafter referred to as the 'Act') against the order of the Customs, Central Excise and Service Tax, Appellate Tribunal dated 22.02.2017. The above appeal was admitted on the following questions of law:- 1. Whether amendment in the Bills of Entry can be allowed even when the Certificate of Origin was issued at a later date retrospectively and was not available at the time of clearance of the Bills of Entry in contravention of the section 149 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of Samsung India Electronic Pvt. Ltd. In Appeal No. C/709 710/2010-CU[SM] vide Final Order No. 70816-70817/2016 dated 09.09.2016, taking notice of the relevant provisions and also the provisions of Korea-India Comprehensive Economic Partnership Agreement, it was held as follows: Having carefully considered the rival contentions, I hold that the Ld. Commissioner (Appeals) have erred in rejecting the appeal and it is clear case of failure of his part to exercise jurisdiction. In the interest of justice, I allow these appeals by way of remand to the Adjudicating Authority with the direction to verify the claim of the appellant and to allow the same after verifying the authenticity of the Certificate of Origin. The appellant is also directed to appear before the Adjudicating Authority with their representation and supporting within a period of 45 days from the date of receipt of the copy of this order and seek an opportunity of hearing. Assailing the aforesaid order, learned counsel for the revenue has relied on proviso to Section 149 of the Act to submit that the subject 'Bills of Entry' could not have been amended after the goods had been imported an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 02.03.2012 9. 6263663 14.03.2012 301200343 28.03.2012 15.03.2012 10. 6199493 07.03.2012 211200488 29.03.2012 09.03.2012 11. 6392067 28.03.2012 211200410 21.03.2012 30.08.2012 12. 6465558 05.04.2012 301200392 05.04.2012 07.04.2012 13. 7244052 28.06.2012 211200883 05.06.2012 29.06.2012 14. 7169101 20.06.2012 301200587 30.05.2012 21.06.2012 15. 7169089 20.06.2012 211200847 30.05.2012 21.06.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 211100689 28.07.2011 25.07.2011 31. 4168971 25.07.2011 211100894 22.08.2011 28.07.2011 32. 4342249 11.08.2011 211101786 22.12.2011 12.08.2011 33. 4402121 19.08.2011 211101802 22.12.2011 19.08.2011 34. 4575616 07.09.2011 211200153 27.01.2012 12.09.2011 35. 4575517 07.09.2011 211101784 22.12.2011 12.09.2011 36. 4999862 22.10.2011 211101542 06.10.2011 24.10.2011 37. 5097071 03.11.2011 211101593 23.10.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.07.2012 211201334 13.09.2012 25.07.2012 53. 7620282 08.08.2012 211201336 13.09.2012 09.08.2012 54. 7648647 13.08.2012 211201337 13.09.2012 18.08.2012 55. 6581310 18.04.2012 211200515 02.04.2012 19.04.2012 56. 6838986 16.05.2012 301200530 11.05.2012 19.04.2012 57. 7462942 23.07.2012 211201023 02.07.2012 25.07.2012 58. 7428635 18.07.2012 211200991 28.06.2012 20.07.2012 Referring to the aforesaid chart, learned counsel for the revenue submits, while the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to him admittedly, there is a bilateral treaty between the Republic of India and the Republic of Korea which provides for exemption of customs duty, amongst others on the goods imported by the assessee here. Then he relies on Section 25 of the Act to submit, though the goods in question were exigible to customs duty, at the same time the Central Government was competent to grant exemption from payment of customs duty on such goods, generally, either absolutely or subject to conditions that may be fulfilled either before or after clearance of imported goods for home consumption. Further, such conditions could be specified by way of notification. For ready reference provisions of Section 25(1) of the Act are quoted below:- Section 25:- Power to grant exemption from duty- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for 'Certificate of Origin'. It reads: 15. Certificate of origin- The goods eligible for preferential treatment under the agreement shall be supported by a Certificate of Origin issued by an authority designated by the Government of the exporting State party and notified to the other State party as specified in the Annexure-IV to the rules and in accordance with the detailed operational certification procedures for implementation of these rules as specified in Annexure-III to the rules and in the format specified in the Annexure-V to the rules. (emphasis supplied) Annexure-III to the Tariff Rules provides for the Procedure regarding claim of preferential tariff treatment and 'Certificate of Origin' goods under the agreement . Para 3(4) of Annexure-III to the Tariff Rules reads as under:- 3. Issuance of Certificate of Origin:- (1).... (a)...... (b)...... (2)..... (3)..... (4) The Certificate of Origin shall be issued by the relevant Issuing Authorities at the time of exportation, or within seven working days from the date of shipment whenever the goods to be exported can be considered originating in that State party: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 'Bill of Entry' was cleared by the custom authorities. However, Section 149 does not express the complete intent of the Act. Section 25 of the Act provides for exemption for payment of custom duty. Under that section, the Central Government is enabled to grant exemption from custom duty to any goods generally, either absolutely or subject to condition as may be specified in the notification. By very nature, Section 25, therefore, becomes an exception to Section 12 of the Act that creates levy of custom duty on goods that may be imported to or exported from India. We may note, in Topman Exports v. CIT, (2012) 3 SCC 593 the Supreme Court while dealing with the deduction claimed under section 80 HHC read with Section 28 of the Act observed as below: 39. It is a well-settled principle of statutory interpretation of a taxing statute that a subject will be liable to tax and will be entitled to exemption from tax according to the strict language of the taxing statute and if as per the words used in Explanation (baa) to Section 80-HHC read with the words used in clauses (iii-d) and (iii-e) of Section 28, the assessee was entitled to a deduction under Section 80-HHC on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. (emphasis supplied) In the context of the Customs Act, we find Section 149 of the Act appears to be a provision to give effect the charge of duty created under Section 12 of the Act. Section 25 of the Act is an exception to the aforesaid scheme. It would be wholly illogical to apply Section 149 of the Act with all its rigor to goods that are exempt from payment of customs duty under Section 25 of the Act. That exemption from custom duty has been made subject only to a notification issued by the Central Government that may grant exemption either absolutely or subject to condition/s so notified. Here it is very significant to note, while granting exemption the Central Government has the power to exempt generally any goods from payment of custom duty subject to such condition/s as may be notified. However, in view of clear language of Section 25 of the Act such condition/s may be fulfilled either before or after clearance of the goods. That being the provision of the Act itself, the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 151 dated 31.12.2009 under Section 25(1) of the Act to provide for a general exemption from payment of custom duty on specified goods mentioned in the table appended to that notification subject to the condition that those goods be imported from Republic of Korea in accordance with the provisions of the Tariff Rules. Thus, the exemption from duty could be claimed by the assessee upon fulfillment of the condition that the goods had been imported in accordance with the Tariff Rules. As to the Tariff Rules, it is seen, under Rule 15 of the Tariff Rules a 'Certificate of Origin' was required to have been issued by the designated authority in the Republic of Korea in accordance with the detailed operational certificate procedure for implementation of the Tariff Rules as specified in Annexure-III to the Rule. Paragraph 3 (4) of Annexure-III to the aforesaid Tariff Rules (as has been extracted above), clearly provided that in the first instance the condition of 'Certificate of Origin' being in existence at the time goods were cleared for home consumption may be fulfilled either at the time of exportation of goods from Korea or even seven working days therefrom provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l it needs to be examined whether the assessee had complied with the condition/s for grant of exemption under Section 25 of the Act read with exemption notification and the Tariff Rules i.e. whether the conditions prescribed accordance with Section 25 of the Act read with Notification No. 151 dated 31.12.2009 read alongwith Tariff Rules had been complied with by the assessee within time prescribed. We find in the first place, Section 25 of the Act itself contemplated that the conditions that may be imposed by the Central Government while issuing an exemption notification may be fulfilled either before or after clearance of the goods. That being the intent of the parent legislation, there could be no denial to the claim made by the assessee that as a rule it was entitled to fulfill the condition for grant of exemption even after the goods had been cleared for home consumption. Thus even in absence of Annexure-III to the Tariff Rules, it may have been open to the assessee to claim exemption from payment of custom duty. However, that apart in the instant case, by virtue of Rule 15 of the Tariff Rules, the Central Government has further acted in concert and in conformity with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid notification itself. The manner of proof provided by the Tariff Rules, as discussed above, by virtue of Rule 15 read with paragraph 3(4) of Annexure-III of the Tariff Rules allows the assessee to prove this fact by obtaining the 'Certificate of Origin' not later than one year from the date of shipment of goods. Not only that, in cases where the 'Certificate of Origin' had been issued after seven days but upto one year from the date of shipment, the assessee is further burdened to explain the reason for the same-either being on account of involuntary errors or omissions or any other valid reasons and any other or further requirement that the revenue may claim under the Tariff Rules. Once the assessee establishes the aforesaid facts, it would be entitled to claim exemption. The stipulation of Section 149 of the Act or any other provisions incorporated under the Act or the Rules for compliance of duty payment may not stand in the way of the assessee to claim exemption under Section 25 of the Act. For the reasons stated above, we answer question nos. 1 and 2 in affirmative i.e. in favour of the assessee and against the revenue. The revenue authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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