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TMI Blog2024 (4) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... after having been heard. W.P.(C) Nos.5394/2024, 4670/2024 and 12195 of 2024 2. Sri K.Srikumar, Senior Advocate assisted by Adv.M.Balagopal addressed the arguments in WPC Nos.5394 of 2024 and 12195 of 2024 whereas in Writ Petition (c) No.6090/2024, Sri.Anil D.Nair, Senior Advocate and in WPC No.6090 of 2024 Smt.Ammu Charles. 3. Brief facts of each Writ Petitions which are relevant for the purposes of deciding the writ petitions are noted hereunder: WPC No.5394 of 2024 3.1 The petitioner, a Partnership firm, is engaged in the business of manufacture and export of mats, mattings, other floor coverings of coir and other textile materials. The petitioner is a registered dealer under the CGST/IGST Act and Rules made thereunder. The petitioner would import raw materials for the purpose of exporting finished goods under Advanced Authorisation Scheme. Under the said Scheme, an exporter is entitled to import inputs by claiming exemption of Basic Customs Duty ("BCD") and Integrated Goods and Services Tax ("IGST"). The petitioner requested for amendment of Bill of Entry by the 4th respondent after payment of IGST and interest thereon. However, the said request has been declined and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October 2023. 3.6 The petitioner made a request, Ext.P10 to the 4th respondent to expedite the amendment process of Bills of Entry as the petitioner had remitted the entire IGST and interest against the import/Bills of Entry in order to regularise the refund of IGST paid on export of finished goods. The petitioner had approached this Court by filing WP (c) No.34617 of 2023 with a prayer to direct the 4th respondent to issue certificates for amending the Bills of Entry as requested in a time bound manner and also direct the 3rd respondent not to proceed with Ext.P7 show cause notice till the 4th respondent issued amendment certificate. The said Writ Petition was disposed of vide Ext.P11 judgment dated 6th December 2023. This Court, after taking note of the judgment of the Telangana High Court in the case of Sony India Pvt. Ltd. V Union of India (WP(C) No.4793 of 2021 dated 12th August 2021) and the provisions of the Circular No.16/2023 issued by the Central Board of Indirect Taxes and Customs (Paragraphs-7 and 8) directed the third respondent to consider the request of the petitioner for issuing the certificate for amendment of the Bills of Entry in the light of the aforesaid judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 149. 36. Therefore, the stand of the respondents in the counter affidavit that only reassessment under Section 128 is the remedy available to the petitioner, and Section 149 cannot be invoked, is not tenable. We also reject the plea of the 2nd respondent that there is no possibility of getting modified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128." Considering the said judgment of the Telangana High Court and the Circular No.16/2023, the present writ petition is disposed of with a direction to the 3rd respondent to consider the request of the petitioner in Ext.P8 in the light of the judgment passed by the Telangana High Court and the provisions of the Circular No.16/2023 issued by the Central Board of Indirect Taxes and Customs, preferably within a period of 15 days from today. Till such decision is taken, further proceedings in pursuance to Ext.P11 shall not be undertaken. '' 3.8 In compliance of the said judgment, the 4th respondent has passed the impugned order, Ext.P12, stating that an amendment to the bills of entry for including payment of IGST at the time of impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to claim refund of IGST paid on export. The respondents instructed the petitioner to remit back the refund of IGST on exports together with interest. Rule 96(10) of the CGST Rules, 2017 was amended by Notification dated 09.10.2018 providing that the refund on exports cannot be availed by an importer if on the inputs procured by the importer has availed the benefit of Notification No.78/2017. In the light of the amendment of Rule 96(10) with effect from 9th October 2018, the petitioner requested both the respondents to amend the bills of entry on imports to enable the petitioner to pay the IGST through the ICEGATE portal and get the credit of input tax paid through auto populated GSTR-2B in the GST Portal. The respondents had directed the petitioner to pay the IGST amount to TR6/Manual challans signed by the customs official. The petitioner paid a sum of Rs.1,51,10,488/- towards IGST through TR6/Manual challans. The IGST payment made through Manual challan could not get auto populated in the GSTR 2A/2B, and thus, there would be mismatch between GSTR-2A/2B and input tax availed in GSTR-3B. The petitioner was served with a notice dated 17th November 2021 by the office of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also remitted and the first respondent accepted the differential IGST along with the applicable interest against Ext.P1 Bill of Entry. 5.2 Vide impugned order Ext.P7 dated 13th February 2024, the petitioner's request for amending the Bill of Entry has been rejected. The aforesaid order is under challenge before this Court. WPC No. 6090 of 2024 6. The petitioner is a company registered under the Companies Act, 1956. The petitioner is having two units. One unit is a 100% Export Oriented Unit (EOU) and the other is a Domestic Tariff Area (DTA) unit. The petitioner is engaged in the manufacturing and export of floor coverings of various textile materials including coir. 6.1 For the purposes of exporting finished goods, the petitioner would import raw materials under Advance Authorisation (AA) Scheme and EoU Scheme. The 4th respondent, based on a communication received from the Director General of GST Intelligence, Kochi had issued a notice dated 4th Marach 2022 calling upon the petitioner and other exporters to pay IGST along with applicable interest in all the Bills of Entry where the input goods were imported by availing the IGST exemption under AA/EOU Scheme. Consequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bill of Entry under Section 149 of the Customs Act, 1962 is possible is contrary to their own stand. It is submitted that the 4th respondent had permitted similarly placed exporters to amend the Bill of Entry and issued Amendment Certificate dated 16th June 2022 issued to M/s Tufko International and Amendment Certificate dated 20th May 2022 issued to M/s Specta Décor Pvt. Ltd. However, the petitioners have been denied the said certificate despite payment of the IGST and applicable interest on inputs. 9. It is further submitted that the Circular No.16/2023- Cus. dated 17th June 2023, Ext.P13, provides procedure/ amendment of bills of entry where the IGST was levied in violation of the import condition and this circular is applicable in all the cases where the IGST was short levied for whatever reasons. 10. 5.2, 6.1 and 6.2 of Circular No.16/2023-Cus.dated 17th June 2023 is extracted hereunder: 5.2. Keeping above aspects in view, noting that the order of the Hon'ble Court shall have bearing on importers others than the respondents; and for purpose of carrying forward the Hon'ble Court's directions, the following procedure can be adopted at the port of import (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. Section 149. Amendment of documents.-Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. 154. Correction of clerical errors, etc.-Clerical or arithmetical mistakes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 13th October 2017 and the public notice, the stand of the respondents that the Bills of entry cannot be allowed to be amended as the petitioners have not paid the IGST at the time of clearance of the imported goods and as a Bill of entry can be amended only on the basis of the documents available at the time of clearance of the goods, does not hold a valid ground for rejecting amendment of the Bill of Entry. Rejecting the application for amendment of the Bills of Entry despite payment of IGST and interest except in Writ Petition No.4670 of 2024 where the interest has not been paid cannot be countenanced. 17. The second ground taken by the respondent for rejecting the request for amendment of Bills in Entry is that the Bill of Entry is a self-assessment order which can be amended only under Section 128 also does not hold good. The issue is no longer res integra. 18. The Telangana High Court in Sony India Pvt. Ltd. V Union of India [2022 (379) ELT 588] has considered the issue in detail including the provisions of Section 149 and held that Section 149 is an additional remedy available to the person who seek amendment of the Bill of Entry and therefore, the stand of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraphs 17.1 to 25 on the said judgment in Dimensions Data India Pvt. Ltd. V Commissioner of Customs (2021 (376) ELT 192 (Bom.) are extracted hereunder; 21. For ready reference, Section 149 of the Customs Act is extracted hereunder: "149 Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended in such form and manner, within such time. subject to such restrictions and conditions, as may be prescribed : Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." 18. From a careful analysis of Section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house However, as per the proviso, no such amendment shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation against the assessed duty could be entertained. 22.1 From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of reassessment under Section 17(4) or amendment of documents under Section 149 or correction of clerical mistakes or errors in the order of self-assessment made under Section 17(4) by exercising power under Section 154 vis-a-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence of any challenge to an order of assessment in appeal, any refund application against the assessed duty could be entertained. In that context Supreme Court observed in paragraph 43 as extracted above that an order of self-assessment is nonetheless an assessment order which is appealable by "any person aggrieved thereby. It was held that the expression "any person" is an expression of wider amplitude. Not only the revenue but also an assessee could prefer an appeal under Section 128. Having so held, Supreme Court opined in response to the question framed that the claim for refund cannot be entertained unless order of assessment or self-assessment is modified in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, falls squarely within the domain of Section 149 read with Section 154 of the Customs Act. Upon amendment in the Bills of Entry by correcting the CTH, consequential reassessment order under Section 17(4) of the Customs Act would be in order. 22. The Madras High Court in the case of Hindustan Unilever Limited v Union of India (Laws (MAD)-2021-3-454) while rejecting the argument of the Revenue held that for amending the Bill of Entry, ground of the documents available at the time of clearance of the goods cannot be invoked. In paragraphs 12, 13 and 14 observed as under: (12.) The argument put forth by the revenue in that case was that, only such documents that were already on record with the respondents could be taken into account to correct the error, if at all and no other documents may be admitted for that purpose. I have rejected that argument stating that the spirit and intent of Section 149 is to facilitate the correction of error where the importer is in a position to establish that such error was inadvertent and bonafide. (13.) To say that the goods have already been cleared for home consumption and thus no amendment may be made, would fall in the face of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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