TMI Blog2022 (10) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... carriers, officials of the Customs department, Port authorities and facilitators, such as customs agents, freight forwarders, transporters, consolidators, CFS and many more. It is important for the authorities to arrive at a proper methodology for capturing information from each of the stake holders. This is the attempt of the Electronic Data Interface (EDI) and the ICEGATE system. Clearly, the system requires fine tuning and the quicker the authorities respond and resolve issues that stakeholders face, as and when they arise, the smoother the functioning of the system will be - the request of the petitioner for access to the ICEGATE system is rejected for the reason as stated by the customs authorities. The system is a conglomeration of materials from various sources and is meant for effective functioning of the Department and smooth management of the transactions. No one operator can be provided with access to the entirety of the system. The petitioners are given liberty to make a representation before the appropriate authority setting out the circumstances in which they seek access to the electronic system and raising any/all submissions as necessary in support of the request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners had not filed Export General Manifest (EGM) in respect of certain specified shipping bills. Though the error had been rectified by the petitioners, such rectification was only post the issuance of show cause notices, and thus, penalty had been imposed under Section 117 of the Act, for contravention of the provisions of Section 41 of the Customs Act, 1962 (in short Act ). 2. Quite apart from the violation itself, the respondent would point to the fact that the non-filing of EGM has resulted in delayed processing of claims for export incentives by the exporters. This is cited as an additional reason for the imposition of penalty. 3. In the second batch of Writ Petitions, while the primary facts as noticed in the aforesaid matters remains identical, the petitioners had, as against the ordersin- original, approached the first appellate authority who rejected the appeals. As against such rejection, though a second statutory appeal is provided to the Customs, Excise and Service Tax Appellate Tribunal, those petitioners, fortified by interim protection obtained by the petitioners in the first batch, have approached this Court under Article 22 6 of the Constitution of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to deliver the export manifest by presenting electronically, allow the same to be delivered in any other manner.] (2) The person delivering the 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 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. (ix) The EGM comprises proof of shipment and is required to scrupulously adhere to, and reveal the details of the cargo that have been stuffed into each container. The contents of the EGM are regulated and bound by the Export Manifest (Vessels) Regulations, 1976, which require that the EGM contain details of a) goods shipped, b) goods transshipped at the port and c) goods lying in the vessel but not landed or transshipped (referred to as bottom cargo). (x) In terms of Section 41, it falls upon the Liner to ensure that the EGM filed makes a full and true disclosure as to the contents of every container, i.e., that it contains the details of the shipping bills of ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f each of the shipping bills with the EGM could be conducted at their end to ensure that no shipping bill is omitted. In any event, since the entire process of stuffing and thereafter transportation of the containers from the CFS/ICD to the Port is done under customs supervision, the petitioners can hardly be solely responsible, so as to be visited with penalty. They also complain that they have been singled out for the punitive action, as nowhere else in the Country have carriers been visited with the levy of penalty. 8. That apart, they would also rely on Facility Circular No.44/2018 issued by the Commissioner of Customs, Chennai IV dated 01.10.2018. This Facility Circular was issued specifically for the purpose of smooth functioning of IGST refund on export for which purpose, the filing of a EGM was crucial. At paragraph 2 of the Circular, the authorities note that the non-filing of EGMs was prevalent mostly in the case of LCL shipping bills. They record the grievance of the Steamer Agents to the effect that this lapse arises on account of the non-furnishing of a complete list of shipping bills of consignments stuffed in a container by the consolidator. 9. In fact, an ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ** Room No.227B, North Block, New Delhi Dated 2nd January, 2019. To All Principal Chief Commissioners/Chief Commissioners of Customs/Customs (Preventive) All Principal Chief Commissioners/Chief Commissioners of Customs Central Excise All Principal Commissioners/Commissioners of Customs/Customs (Preventive) All Principal Commissioners/Commissioners of Customs Central Excise. Subject: IGST Export Refunds-resolution of errors reg. . 2. Non-filing/Late filing of Online Local and Gateway EGM: - (i) The processing of IGST refund gets hampered either because the local EGM has not been filed online or has been filed late. There are instances where the cargo originating from the hinterland ICDs reached the gateway port without the local EGM having been filed online. Earlier vide Circular No. 42/2017-Cus., dated 7.11.2017 it was explained that due to manual filing of EGM in respect of Shipping bills originating from ICDs, system is unable to match the gateway EGM and the local EGM. Therefore, it was instructed that all the custodians / carriers/shipping lines operating at ICDs/ Gateway ports should file EGM onli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) above. It shall be the responsibility of the officers in charge of CFSs at Gateway ports to obtain necessary details from the stakeholders which establish the linkages between the goods received from inland ICDs/ CFSs and those exported out of India except in cases where the local EGM has not been filed in which case the responsibility would be of the officers manning the inland ICD/CFS. 11. The aforesaid Circular also deals in detail with the procedure that is to be followed and suggests possible resolutions under the head Mismatch in Local and Gateway EGM . Sub-para (v) states that the customs officer in charge of CFS must provid a list of shipping bills containing EGM errors to the concerned CFS in the Gateway Ports. This, in turn, is to be provided to the Customs Officers and other links in the export chain to ensure smooth transition of the goods as well as processing of the export refund. 12. The on-going effort thus appears to be to a work-in-progress to ensure a simultaneous upgradation of system as well as continuing education of all the stakeholders concerned to improve the facility/infrastructure, as well as the services available. 13. Learned Standing C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete and true in all respects. 18. I have heard learned counsels in details and perused the files. 19. As rightly pointed out by the petitioners, the impugned orders are significantly delayed. The orders, though of the year 2019 relate to shipping bills of the year 2017. It was incumbent upon the authorities to have raised the issue in a timely fashion, all more for the reason that with the passage of time, the necessary bills and documents would be difficult to locate and collate. 20. Having said so, the petitioners cannot shy away from the responsibilities cast upon them by Section 41. No doubt, neither Section 117 in terms of which penalty has been levied upon the petitioners nor Section 124 deal with any time frame within which a show cause notice may be issued or an order passed levying penalty. 21. Notwithstanding that, punitive action must be taken in a timely fashion and the issue of a show cause notice for a violation that occurred two years earlier is, in my view, unacceptable. Given below is the tabulation of the dates of shipping bills, show cause notices, orders-in-original and dates of orders-in-appeal that reveal that delay has occurred in the cases of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33922/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 12. 33923/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 13. 33925/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 14. 33928/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 15. 33929/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 16. 33931/2019 28.03.2019 (26) 07.03.2019 (26) 2017 (26) 15.11.2019 17. 33899/2019 28.03.2019 (26) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 24.05.2019 12.02.2019 26.09.2018 - 31. 17470/2019 23.05.2019 04.03.2019 19.09.2018 - 32. 23009/2019 29.05.2019 04.03.2019 16.04.2017 - 33. 23016/2019 29.05.2019 04.03.2019 10.04.2017 - 34. 23018/2019 29.05.2019 04.03.2019 24.04.2017 - 35. 23020/2019 29.05.2019 12.03.2019 30.05.2017 - 36. 23023/2019 29.05.2019 12.03.2019 18.05.2017 - 37. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15839/2019 29.05.2019 12.03.2019 15.03.2017 - 52. 15842/2019 29.05.2019 12.03.2019 24.03.2017 - 53. 15843/2019 29.05.2019 12.03.2019 24.03.2017 - 54. 17272/2019 26.03.2019 12.02.2019 15.09.2017 - 55. 17268/2019 22.03.2019 06.02.2019 01.07.2017 - 56. 17262/2019 06.05.2019 12.03.2019 11.05.2017 - 57. 17432/2019 11.04.2019 04.03.2019 12.04.2017 - 58. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 442/2021 29.02.2020 22.10.2018 07.05.2018 08.05.2018 09.05.2018 - 73. 15844/2019 06.05.2019 12.03.2019 20.03.2017 - 74. 30713/2019 30717/2019 30720/2019 30722/2019 25578/2019 25585/2019 21.08.2019 21.08.2019 21.08.2019 27.09.2019 24.05.2019 24.05.2019 19.12.2018 27.12.2018 01.06.2018 30.11.2018 12.02.2019 22.04.2019 04.10.2018 17.01.2018 05.09.2017 14.07.2017 26.12.2017 18.07.2017 - 75. 23074/2019 29.05.2019 12.03.2019 15.05.2017 - 76. 23073/2019 29.05.2019 12.03.2019 04.05.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 22. Some of the petitioners have, upon receipt of the show cause notices, rectified the error in the EGM even prior to the passing of the impugned orders and this would also support my conclusion that levy of penalty in these cases was not justified. 23. The specific averment by the petitioners to the effect that penal action has been taken only in the present cases, and in no other charge in the country, has not been denied by the respondents. In such an event, I would subscribe to the view that a consistent methodology must be followed by customs authorities pan India. The Circulars and Instructions that have been placed before the Court also indicate categorically that the overriding spirit in terms of which the procedure must be understood and implemented, is one of facilitation, rather than adversarial. 24. The shipping industry comprises of several stakeholders, exporters, vessels/carriers, officials of the Customs department, Port authorities and facilitators, such as customs agents, freight forwarders, transporters, consolidators, CFS and many more. It is important for the authorities to arrive at a proper methodology for capturing informa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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