2006 (12) TMI 19 - AT - Customs

Import High Sea Sales Non realization of any monetry consideration by appellant-seller not disputed Appellants requested to clear the goods by the importer Appellant permitted to file fresh BOE with exemption and indemnity bond also

Issues:
1. Amendment of bill of entry for imported goods.
2. Validity of High Sea Sale agreement.
3. Exemption under Notification No. 21/02.
4. Liability for payment of duty.
5. Role of original importer in clearing goods.
6. Applicability of relevant legal provisions and judgments.

Amendment of Bill of Entry:
The case involved an appeal against the Commissioner's order rejecting a request for amending bills of entry filed by the original importer, M/s Magpie Overseas Co. The appellants, as sellers under a High Sea Sale agreement, sought permission to amend the bills of entry after the original importer failed to clear the goods. The appellants argued that since the goods were not yet cleared from customs and were still in custody, an amendment should be allowed under Section 149 of the Customs Act. The Tribunal, considering the legal provisions and judgments cited, set aside the Commissioner's order and directed that the bills of entry be treated as cancelled, allowing the appellants to file fresh bills of entry for the entire quantity of goods without claiming exemption.

Validity of High Sea Sale Agreement:
The appellants contended that the High Sea Sale agreement with M/s Magpie Overseas Co. was not valid as no consideration had been paid, and the title document was not assigned to the buyer. They emphasized that they were entitled to clear the goods as owners/importers under the agreement. The Tribunal, while not explicitly addressing the validity of the agreement, focused on the rights of the appellants as sellers under High Sea Sale basis, allowing them to proceed with clearing the goods by filing fresh bills of entry.

Exemption under Notification No. 21/02:
The original importer, M/s Magpie Overseas Co., had claimed exemption under Notification No. 21/02 for a portion of the imported goods. However, due to non-payment and failure to clear the goods within the prescribed time limit, the Tribunal directed that the appellants should file fresh bills of entry without claiming the said exemption. The Tribunal emphasized that applicable duty and interest should be collected as per law for the new entries.

Liability for Payment of Duty:
The appellants, as sellers, expressed willingness to clear the goods on payment of applicable duty rates without claiming any exemptions. They argued that any mis-declaration in the manifest should not be attributed to them. The Tribunal directed the appellants to produce an indemnity bond to the satisfaction of the Commissioner of Customs to safeguard against any claims or damages by M/s Magpie Overseas Co. related to the consignment.

Role of Original Importer in Clearing Goods:
The original importer, M/s Magpie Overseas Co., failed to clear the goods within the prescribed time limit, leading to the appellants seeking permission to amend the bills of entry. The Tribunal noted that the original importer was not available at the given address and was found to be a fake firm. This situation further supported the Tribunal's decision to allow the appellants to proceed with clearing the goods by filing fresh bills of entry.

Applicability of Relevant Legal Provisions and Judgments:
The Tribunal considered the provisions of Section 149 of the Customs Act, which allows for the amendment of documents presented in customs. Additionally, the Tribunal referred to various judgments cited by the appellants, setting aside the Commissioner's order and providing specific directions for the appellants to file fresh bills of entry, pay applicable duty, and produce an indemnity bond. The Tribunal's decision aimed to address the unique circumstances of the case while upholding the legal principles and precedents cited.

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