TMI Blog2024 (4) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... 49. The office of Principal Commissioner of Customs, Maharashtra had issued public notice dated 23rd February 2024 for amending the Bills of Entry as per the procedure prescribed in different scenarios mentioned in the said public notice. In view of the notification No.78/2017-Customs dated 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. Further, as noted, except for the petitioner in Writ Petition, the Commissioner of Customs vide order dated 4th March 2022 directed the petitioners to deposit the IGST along with interest for all the Bills of Entry for which erroneous refund was availed under Rule 96(10) of the CGST Rules, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impugned show cause notice, Ext.P7 and Ext.P12 order, have been issued which are under challenge in the present Writ Petition. 3.2 The second respondent initiated enquiry into the availment of IGST refunds by exporters operating under 100% EoU Scheme and Advance Authorisation Scheme wherein they had availed the exemption of IGST on imported inputs under the Notification Nos.78 of 2017 and 79 of 2017, both dated 13.10.2017. On submission of details as called, a personal hearing was given by the 2nd respondent to the petitioner. The petitioner submitted that they were availing IGST exemption on imported inputs and had availed simultaneously the IGST refund on the goods exported. The petitioner was given an option by the 2nd respondent to remit the IGST exemption availed on imported inputs along with applicable interest for regularizing the refund granted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 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 judgment and circular. 3.7 For ready reference, paragraphs 7 and 8 of the aforesaid judgment are extracted hereunder: 7. Sri. Sreelal N.Warrier, learned Standing Counsel appearing for respondents 2 and 3, submits that because of the judgment of the Supreme Court in the case of ITC Ltd v. Commissioner of Central Excise, Kolkata [2019 KHC 6932], some difficulty was felt for allowing an assesee to amend the Bill of Entry. However, the Division Bench of the Telangana High Court in the case of Sony India Pvt.Ltd v. Union of India, rendered judgment on W.P.(C.) No.4793 of 2021 dated 12.08.2021, has held that the power to amend the Bill of Entry under Section 149 of the Customs Act, 1962 is a discretionary power vested with the Authority and if, on account of incorrect determination of duty by the Assessing Authority initially, an assessee is compelled to seek amendment of Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 import would not be possible. In Section 149 of the Customs Act, 1962, it has been expressly laid down that no amendment of a Bill of Entry shall be authorised after the imported goods have been cleared for home consumption except on the basis of documentary evidence which was in existence at the time the goods were cleared. In the case of the petitioner, at the time of clearance of goods in the Bills of Entry, no IGST was paid, the same having been claimed as exempted. It was said that even though the IGST along with interest appears to have been paid, the said payment has been made after the clearance of the imported goods and the amendment to that effect, that IGST had been paid in the Bills of Entry cannot be made at this stage. 3.9 The 4th respondent was of the opinion that when an original order of assessment has been made under Section 17 of the Customs Act, 1962 which includes self-assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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 3rd respondent requiring them to furnish the details in respect of the exports made refund claim and procurement of inputs along with copies of the shipping bills/invoices and Bill of lading. The petitioner was thereafter, issued show cause notice, Ext.P7 dated 26th September 2023 under Section 73(1) of the CGST Act, 2017 requiring them to show cause as to why the refund amount of Rs.10,80,76.947/- should not be recovered from the petitioner. The petitioner had filed a reply to the show cause notice in Ext.P8. The 4th respondent took judicious note of the payment effected vide TR6 challans in terms of the amendment brought to Rule 96(10). However, in view of the fact that the Bills of Entry were not amended recognising these payments, the said payment would not be reckoned. The petitioner's request for amendment of Bills of entry was not acceded to by the adjudicating authority. The petitioner filed WPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gence, 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 to the demand issued by the 4th respondent, Ext.P4 notice, the petitioner remitted a total amount of Rs.2,42,03,799/- through challan dated 25th February 2022 being total IGST availed as exemption against the imported inputs. Thereafter the petitioner, on 3rd January 2023, paid the applicable interest of Rs.13,61,208/- due on IGST. 6.2 On payment of IGST, the petitioner vide letter dated 4th January 2023 requested the 4th respondent for amendment of Bills of Entry so as to include the IGST paid in the said Bill of Entry. 6.3 In the meantime, the 2nd respondent had issued a show cause notice dated 5th October 2023 to the petitioner directing to show cause as to why an amount of Rs.6,52,61,010/- being the ineligible amount of IGST refund sanctioned to the petitioner in contravention to Rule 96(10) of the CGST Rules should not be demanded and recovered along with applicable interest and while penalty proceedings should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (POI):- (a) for the relevant imports that could not meet the said pre-import condition and are hence required to pay IGST and Compensation Cess to that extent, the importer (not limited to the respondents) may approach the concerned assessment group at the POI with relevant details for purposes of payment of the tax and cess along with applicable interest. (b) the assessment group at POI shall cancel the OOC and indicate the reason in remarks. The BE shall be assessed again so as to charge the tax and cess, in accordance with the above judgment. (c) the payment of tax and cess, along with applicable interest, shall be made against the electronic challan generated in the Customs EDI System. (d) on completion of above payment, the port of import shall make a notional OOC for the BE on the Customs EDI System [so as to enable transmission to GSTN portal of, inter alia, the IGST and Compensation Cess amounts with their date of payment (relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 12. Section 128 provides for an appeal to Commissioner (Appeals) and a person aggrieved by any decision or order passed by an officer of Customs lower in rank than a Principal Commissioner or Commissioner of Customs would appeal to the Commissioner of Appeals within 60 days from the date of communication to him. It is a normal appellate provision. 13. Section 149 provides for amendment of documents and it would also include the amendment to the Bill of Entry. The first proviso to Section 149 of the Customs Act, however, provides that the amendment of a Bill of Entry can be made after the imported goods have been cleared for home consumption or deposited i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondents that only reassessment under Section 128 is the remedy available to the person and Section 149 cannot be invoked is not tenable. 19. Paragraphs 34 to 36 of Sony India Private Ltd. ( Supra ) are excerpted hereunder : 34. In the decision of the Supreme Court in ITC Ltd. (supra) while holding that the refund cannot be granted by way of a refund application under Section 27 of the Act until and unless an assessment order is modified and a fresh order of assessment is passed and duty re-determined, the Supreme Court nowhere said that such amendment or modification of an assessment order can only be done in an Appeal under Section 128. In para 47, the Court held categorically: 47..... we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods 19. This bring us to Section 154 of the Customs Act which deals with correction, clerical errors, etc. It says that clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under the Customs Act or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer case may be of customs or the successor in office of such officer, as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion framed that the claim for refund cannot be entertained unless order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. It was in that context that Supreme Court held that in case any person is aggrieved by any order which would include an order of self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Customs Act (emphasis ours). 22.2 Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an order which would include an order of self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. This is because as long as the order is not modified the order remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of Section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include Section 149 and Section 154 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds have already been cleared for home consumption and thus no amendment may be made, would fall in the face of the proviso to Section 149 which imposes a condition to be satisfied by an importer if he requests amendment after the goods have been cleared. The imposition of the condition itself means that a request for amendment may certainly be considered, subject to satisfaction of the condition imposed. I have gone into on to say that the phrase 'on record' would mean any documents that were available with the petitioner that were contemporaneous with imports must also be taken into consideration, to decide the question of existence of error. The Assessing Authority cannot restrict her examination only to documents that are available on her record. This issue thus stands answered in favour of the petitioner(sic). (14.) The purpose of transition to the goods and services tax regime is to facilitate the conduct of transactions pan India and all consequences thereof including the seamless availment of credit. The robustness of the information technology system is critical to this venture. It is thus incumbent upon the authorities to ensure that technology is kept up to date i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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