TMI Blog2021 (7) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... e problem of EGM errors which hamper IGST refund processing - only for continued non-compliance beyond 1.4.2019 the penalty is required to be imposed. In the present case, on receiving the notice from the department, the appellant has immediately rectified the defect. There is no allegation of continued non-compliance. The facts brought to light established that the error was only due to inadvertent omission / system error etc. Penalty u/s 117 of CA - HELD THAT:- Penalty is a form of punishment by recovery of an amount from the offender. It is a form of pecuniary punishment inflicted by law for its violation. If there was no willful intention / wrongful mind for violating the law and such violation occurred was only due to inadvertent omission / system error, imposition of penalty is unwarranted. If there was continued non-compliance even after the errors being pointed out by the department, the circumstances would have been different and penalty may be imposable. It is also to be stated that after the amendment to Section 41, the section itself provides for penalty not exceeding ₹ 50,000/-. That too only if proper officer is satisfied that there is no sufficient cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 1,00,000/- 30,000/- 7 C50/II/333/O/ 2019-SEA 68525/2019 2242532,dt.17.01.2018 1,00,000/- 30,000/- Hence these appeals. 2. On behalf of the appellants Shri D. Balaji, Manager (Documentation) appeared and argued the matter. He submitted that appellant is a vessel operator and has taken all care to furnish necessary documents in regard to the exports. After receiving the show cause notice, the appellant examined the error pointed out in the show cause notices and rectified the same. Most of the times such errors/omissions happened as the appellants found difficulties with the documents received from CHAs which were not precise. Unfortunately, the shipping bills referred in the show cause notice were declared under the code of other shipping lines namely MAERSK / TRANSWORLD / SEAHORSE SHIPPING. With the help of officers who pointed out the errors, the defect was sorted out by the appellant. Had the error been pointed out earlier, the errors would have been rectified and cleared in the month of November 2018 itself. As a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form and manner as may be prescribed and in case, such person-in-charge or other person fails to deliver the departure manifest or export manifest or the export report or any part thereof within such time, and the proper officer is satisfied that there is no sufficient cause for such delay, such person-in-charge or other person shall be liable to pay penalty not exceeding fifty thousand rupees. Provided that the Principal Commissioner of Customs or Commissioner of Customs] may, in cases where it is not feasible to deliver the departure manifest or export manifest by presenting electronically, allow the same to be delivered in any other manner. (2) The person delivering the departure manifest, export manifest] or export report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. (3) If the proper officer is satisfied that the departure manifest, export manifest] or export report is in any way incorrect or incomplete and that there was no fraudulent intention, he may permit such manifest or report to be amended or supplemented. Section 117. Penalties for contravention, etc., not expressly mentioned . - Any person who cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 01.08.2019 w.e.f. 01.08.2019. The Regulation 3A of the said Regulation reads as under : (1A ) Any other person notified by the Central Government for the purposes of filing arrival or departure manifest , shall be required to enter into a bond of rupees ten lakhs in Form-XI and furnish a bank guarantee, or a postal security or National Saving Certificate or a fixed deposit receipt issued by a Nationalised bank, in the name of the Commissioner of Customs, for an amount of rupees ten lakhs alongwith Form-I 9. Regulation 5 speaks about the delivery of departure manifest which reads as under : Regulation 5. Delivery of a Departure Manifest. - (1) An authorised sea carrier carrying imported goods, export goods or coastal goods, shall before the departure of the vessel from the port, deliver the departure manifest to the proper officer electronically : Provided that where it is not practicable to deliver the departure manifest or any part thereof electronically, then the manifest or any part thereof shall be submitted manually in duplicate with the approval of the Commissioner of Customs or any other officer authorised by him. 10. If we read Section 41 as it stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the closure of EGM even after expiry of the mandatory period i.e., 7 days from sailing of the vessel. Further gateway EGMs in respect of ICD Shipping Bills were not filed electronically despite the facility being available in EDI. It is also learnt that the practice of manual filing and acceptance of EGMs at Gateway Ports still continues. Filing of manual EGM will not allowed in future except in rare cases where it is absolutely necessary. 4. With a view to overcome the above problem, it has been decided that, all EGMs pending with ICES Version 2 [Indian Customs EDI system], are required to be closed by the Steamer Agents by 31.10.2017 and get it updated in the ICES Version 2 [Indian Customs EDI system]. Also the shipping lines are advised to use this opportunity and file Supplementary EGMs/EGM Amendments without fail against all the pending Shipping Bills where export was completed. For ICD shipping Bills, the exporters are advised to ensure that the Train Summary / Truck Summary report for Local EGM to be filed at ICD properly in EDI without error and these shipping Bills are then mentioned by the Shipping Lines while filing the EGM in EDI at the gateway Port. 5. Failin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the proper officer . Further, as per Section 42 (2)(b), No such order shall be given until the provisions of Section 41 have been complied with. 4. In terms of Section 148 (2) of the Customs Act, 1962, An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge and is accepted as such by that officer shall be liable for the fulfilment in respect of the matter in question of all obligations imposed on such person in charge by or under this Act or any law for the time being in force and to penalties and confiscations which may be incurred in respect of that matter . 5. In view of the above legal provisions, the Export General Manifest (EGM) should be mandatorily filed before departure of the Vessel from the customs station by the person in charge of a conveyance carrying export goods or his agent, as the case may be, failing which, Penal Provisions shall be invoked under the provisions of Section 41 of Customs Act, 1962 as amended. Only after compliance of the above legal provisions by the concerned shipping agents/liners, the vessel shall be allowed to sail. 6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure to automatically grant refund after validating the Shipping Bill date against the GST Returns. The common errors and combination of errors hinders the problem of refund of IGST paid against exports. In Circular No.1/2019-Cus., F.No.450/119/2017-Cus-IV, dated 02.01.2019, the department has put forward resolutions to solve the problem of EGM errors which hamper IGST refund processing. In sub-para(iv) of Para 2 of the above circular, the Board has stated that penal provisions for violation of Section 41 is not to be invoked till 31.01.2019. The said para reads as under:- Board expects its jurisdictional officers to take all necessary steps to ensure that all EGMs of cargo-related to past cases are filed before 31st January, 2019. As a measure of facilitation, penal provisions may not be invoked for EGMs filled till 31st January, 2019. However, continued non-compliance beyond 1st February,2019 may be dealt strictly by taking recourse to penal provisions in accordance with the law. From the above, it can be seen that only for continued non-compliance beyond 1.4.2019 the penalty is required to be imposed. In the present case, on receiving the notice from the department, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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