9911796707
TMI Blog2022 (7) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... sessed provisionally. The Respondent - M/s. JSW Steel Ltd., imported 98,450 metric tons of Goonyella C Coking Coal for discharge at Marmagao Port which arrived on 14th April, 2017 and Bill of Entry No. 9375854 dated 20th April, 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/-. 3. At the time of clearance of import, goods of a quantity of 1,341 metric tons was found short at Marmagao Port as the same was landed at Jaigad Port. This quantity was not assessed at Marmagao Port and left uncleared at Jaigad Port. The Respondent-Company came to know of this fact from ARCL. After detailed scrutiny, the Respondent-Company ascertained that the excess cargo that was unloaded at Jaigad Port was in fact Goonyella C Coking Coal and not Peak Down North Coking Coal. The Respondent-Company, therefore, vide its letter dated 5th December, 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-Company had paid duty at Marmagao Customs, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file the Bill of Entry after necessary amendment to the IGM, which shows that you have yourself delayed the process of amendment of IGM /filing B/E. The said instructions could have been given well in time by you. Therefore the entire responsibility for late filing of B/E lies on the importer i.e. M/s JSW Steel Ltd." 5. Aggrieved by the same, the Respondent-Company filed an Appeal before the Commissioner (Appeals-II), Central Tax, Pune, urging that the delay in filing the Bill of Entry was in genuine and bona fide circumstances. It was submitted that in terms of Section 46(3) of the Customs Act, 1962, 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. It is submitted that accordingly, Bill of Entry for home consumption was filed within a time at Marmagao. However, at the time of clearance, a quantity of 1,341 metric tons was found short as also confirmed under the Draught Survey Report and that, on enquiry, it was found that the subject goods were wrongly manifested as Peak Down North C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 854 dated 20-04-2017 was filed at Marmagao by the Appellant and the same was assessed provisionally for entire quantity and allowed clearance on payment of duty but 1341 MT of import goods could not be cleared as the same was short landed at Marmugao Port, Goa. Subsequently, the Appellant came to know from ARCL that a qty. of 1,341 MT of imported goods left un-cleared at Jaigad Port. On detailed enquiry, the Appellant came to know that during the course of discharge of Cargo, the Stevedores at Jaigad Port did not follow the approved discharge sequence plan prepared by the Chief Officer of the vessel and over landed 1,341 MT of "Goonyella C Coking Coal" at Jaigad Port as per the report of the Master of Vessel. The Vessel reached Marmagao Port on 14-04-2017 and discharged the balance quantity of 97,109 MT of "Goonyella C Coking Coal" as against 98,450 MT which is evident as per Statement of Facts dated 25-04-2017 of the Vessel at Marmagao Port duly signed by Port Authorities, Agent and Master of the Vessel. The Appellant on learning that short landed goods are at Jaigad Port, instructed their CHA and the Shipping agent for processing of filing of Bill of Entry after necessary amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DORES DID NOT FOLLOW THE APPROVED DISCHARGING SEQUENCE PLAN." The DRAUGHT SURVEY REPORT of the vessel M.V. "CAPE IOANNA" also clearly bears a remark "1341 MT OVERLANDED AT JAIGAD PORT". After getting knowledge of the same the Appellant after requesting for required amendments in the IGM and in the System, which was finally carried out by the Customs authorities on 14-03-2018, filed Bill of Entry for 1,341 MT on 14-03-2018 itself. Here a question arises whether the Bill of Entry filed for the short landed quantity 1,341 MT should be treated as a fresh one when the same quantity had already been assessed under the Bill of Entry no.93758545 dated 20-04-2017. I am of the considered view that the Bill of Entry filed on 14-03-2018 cannot be treated as a fresh Bill of Entry for invoking the provision of Section 46(3) of the Customs Act, 1962 in the present situation when the said quantity was already covered in the earlier Bill of Entry dated 20-04-2017 assessed earlier. The Bill of Entry filed on 14-03-2018 was nothing but requirement of the System for clearance of the short landed goods, which was required to be cleared at Marmagao port but in the present scenario was cleared from Jaiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not due to system fault, but due to the omission by Petitioner. He submits that the said Instruction is available only in bona fide cases and submits that which is not the case here. He submits that therefore the late filing charges are justified. Learned Standing Counsel also submits that the order of the Appellate Authority as well as the Tribunal ought to be set aside. He submits that even otherwise, 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. He submits that this Court, therefore, admit the Appeal on the following substantial questions of law as proposed in the Appeal: "a. Whether the Hon'ble CESTAT, Mumbai, has erred in not taking cognizance of relevant provisions of Section 46 of the Customs Act, 1962 read with the Board's Circular No.12/2007-Cus dated 31.03.2017 wherein it has been clearly stipulated that the late fees charges will be applicable on the Importer in case of delay in filing of Bill of Entry for import of goods except in the case of inability to file Bill of Entry due to system related faults? b. Whether the Hon'ble CESTAT has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th March, 2018 after which, the Bill of Entry for 1,341 metric tons was filed on 14th March, 2018 itself undisputedly without any delay. 12. At this stage, it would be pertinent to refer to Section 46 of the Customs Act, 1962 which is quoted as under: "46. Entry of goods on importation (1) 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. PROVIDED that 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: PROVIDED FURTHER that 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 (a) to examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs station at which such goods are to be cleared. There is a proviso which allows a period of thirty days for presentation of an advance bill of entry. The second proviso is the one we are concerned with which provides that 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. 14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 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 on 14th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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