TMI Blog2023 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... be expected when there is no dispute as to the classification or the rate of duty, no formal order can be expected in such a case, it is more like `across-the-counter affair. Section 149 amendments cannot be read in isolation making these sections with regard to classification or valuation redundant. Reassessment of any assessment cannot be equated with an amendment under Section 149. The legislature, in the interest of justice, has not laid down any time limit under Section 149, does not take away the fact that any changes in valuation should not be in tandem with the laws laid down for refund or demand or else there will be no end for amendments which will result in utter chaos and de-stabilize the entire gamut of the Customs Act, 1962. In the present case, first of all, no documents existed at the time of assessment and the documents produced for amendment were not available at the time of assessment, these surfaced at much later date. The goods were not examined and the invoice produced by the appellant at the time of import had no factual errors and therefore to change the value of the imported goods based on an amended purchase order and revised invoice will not be a simplic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess payment of customs duty and hence, they sought to reopen the assessment and rectify a clerical error in terms of provisions of section 149 and 154 of the Customs Act 1962. The Commissioner (A) observed that section 149 allows amendment of a Bill of Entry after the clearance of the goods only on the basis of documentary evidences which were in existence at the time the goods were cleared for home consumption; while Section 154 deals with only clerical mistakes. He held that since, in this case, no such error was committed, Section 154 was ruled out and Section 149 could not be invoked by the appellant. Thus, in the absence of the goods which have already been cleared and specific identity of the goods not being available, the Revenue had no recourse route to read it in mind the intrinsic value of the software at a belated date. The Commissioner (A) also noted that the appellant had produced an amended purchase order dated 10.12.2009 amending the value of the imported software as USD 2,34,253.50 which was not in existence at the time of import and did not indicate that the same is related to the transaction already completed. He also notes that though the supplier had indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Revenue reiterating the findings of the Commissioner (A) submits that since the goods were not examined at the time of import, the value was accepted by both the Department and the appellant, the question of reopening of the assessment does not arise. Moreover, the documents that were submitted before the Commissioner (A) were not available at the time of import but they happen to have revised the purchase order and revised invoice which was generated at a later period of time which cannot be accepted as a transaction value for the said goods. Therefore, he submits that the goods that were not examined at the time of import cannot now be examined and hence, the question of revising the value based on the documents that were not available at the time of import cannot allow either to amend the Bill of Entry or reassessment. 4. We have gone through the records of case carefully and find that the facts that are undisputed: a) Bill of Entry No. 276457 dated 27.11.2009 filed where goods were declared as SPO for 5691 XXX CATIA Hybrid Design. b) The goods imported by the appellant were not examined at the time of import as they were an ACP client. (Examination order placed below) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, it is abundantly clear that for invoking Section 149, relevant documents should have been in existence at the time of import but in this case, obviously the invoice was revised based on the request of the appellant and the veracity of the genuineness of this invoice could not be verified since the goods were not examined at the time of import nor were available for examination. 5. We find that the Hon ble High Court of Delhi in the case of Terra Films Pvt. Ltd. vs. Commissioner of Customs: 2011 (268) E.L.T. 443 (Del.) held that: The facts leading to the filing of the present appeal need to be mentioned in brief. The appellant is a manufacturer of c-extruded multilayer film having their factory in specified area of Himachal Pradesh and availing exemption from customs duty. It exported commodities under 7 shipping bills during the period of September 2004 to April 2005. In the shipping bills, they had mentioned about the scheme under which exports were made as DEPB/DEEC . The goods stood exported to the destination under this scheme. After a lapse of considerable period, the exporter/appellant vide its letter dated 27th January, 2006 followed by some more letters requested for pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at by the Commissioner has been rightly upheld by the CESTAT. 7. We do not see any perversity or illegality in the discretion exercised by the Commissioner in rejecting the request of the exporter of conversion/amendment from one scheme to the other after a lapse of more than one year. There is no reason to interfere in the findings of the fact arrived at by the CESTAT. Since, there is no question of law involved, the appeal is dismissed. No orders as to costs. Ordered accordingly. (Emphasis supplied) 6. The Hon ble High Court of Madras in the case of Commr. of Cus. (Seaport-Export), Chennai Vs. Suzlon Energy Ltd. 2013 (293) E.L.T. 3 (Mad.) held that: 18. A similar issue was considered by the Division Bench of Delhi High Court in the matter of M/s. Terra Films Pvt. Ltd . v. Commissioner of Customs [2011 (268) E.L.T. 443 (Del.)]. In the above decision, the Delhi High Court has considered the scope of Section 149 of Customs Act and found that the discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house has to be though exercised judicially, it was qualified with the proviso that the amendment could be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bill of entry, the case would fall under Section 149 of the Customs Act, which does not provide any limitation to make application to amend the shipping bill and therefore, the authorities are not justified in rejecting the application on the ground that the same is not within the period of three months, relying upon Board Circular No. 36 of 2010. Identical question came to be considered by the Division Bench of the Madras High Court in the case of Suzlon Energy Ltd. (supra). Relying upon considering the decision of the Division Bench of the Delhi High Court in the case of Terra Films Pvt. Ltd. (supra), Madras High Court has held that such goods would not fall under Section 149 of the Customs Act, but shall be governed by Board Circular No. 36 of 2010. In the case of Terra Films Pvt. Ltd. (supra), the Delhi High Court has considered the scope of Section 149 of the Customs Act and found that discretion vested in the proper officer to permit the amendment in any document after same has been presented in the Custom House has to be though exercised judiciously but it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 149 the proviso needs to be strictly interpreted and any amendment cannot be claimed in a routine manner and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be exercised judiciously, but it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. It also held that for enabling the appellant the benefits of any amendment not only physical verification of the documents would be required but also verification of the goods and also their examination by the Customs was necessarily required to be done. Based on these observations the request for amendment was rejected. Keeping the above observations of the judiciary let s examine as to how they are relevant for the present case where the issue is in relation to the amendment of value of the imported goods. In the present case the documents produced for amendment of the value were never before the assessing authority at the time of clearance and they were admittedly revised purchase o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the goods. The value may be fixed by the Central Government under Section 14(2). Where the value is not so fixed the value has to be determined under Section 14(1). The value, according to Section 14(1), shall be deemed to be the price at which such or like goods are ordinarily sold , or offered for sale, for delivery at the time and place of importation - in the course of international trade. The word ordinarily necessarily implies the exclusion of extraordinary or special circumstances. This is clarified by the last phrase in Section 14 which describes an ordinary sale as one where the seller or the buyer have no interest in the business of each other and the price is the sole consideration for the sale.......... . Subject to these three conditions laid down in Section 14(1) of time, place and absence of special circumstances, the price of imported goods is to be determined under Section 14(1A) in accordance with the rules framed in this behalf. 7. The rules which have been framed are the Customs, Valuation (Determination of Price of Imported Goods) Rules, 1988. Under Rule 3(i) the value of imported goods shall be the transaction value . Transaction value ' has been def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the transaction value used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14. It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules . (Emphasis supplied) 10. The Supreme Court in the case of India Century Metal Recycling Pvt. Ltd. vs. Union of India 2019 (367) E.L.T. 3 dated on 17-5-2019 held that: 9. As per Section 14(1) of the Act, value of the imported goods shall be the transactional value of such goods, which means the price actually paid or payable for the goods when sold for export to India where the buyers and sellers are not related and the price fixed is the sole consideration for sale. As per the first proviso to Section 14(1) of the Act, the transactional value for the purpose of Customs duty would include amounts paid or payable as costs and service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other reason has to be within the framework of laws as laid down under Section 28/27 of the Customs Act, 1962. Therefore Section 149 amendments cannot be read in isolation making these sections with regard to classification or valuation redundant. Reassessment of any assessment cannot be equated with an amendment under Section 149. The legislature, in the interest of justice, has not laid down any time limit under Section 149, does not take away the fact that any changes in valuation should not be in tandem with the laws laid down for refund or demand or else there will be no end for amendments which will result in utter chaos and de-stabilize the entire gamut of the Customs Act, 1962. 12. In the present case, first of all, no documents existed at the time of assessment and the documents produced for amendment were not available at the time of assessment, these surfaced at much later date. The goods were not examined and the invoice produced by the appellant at the time of import had no factual errors and therefore to change the value of the imported goods based on an amended purchase order and revised invoice will not be a simplicitor amendment envisaged under Section 149. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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