2013 (10) TMI 1103 - AT - Customs

Application for amendment in B/E - in the bill of entry only one Painting was mentioned whereas two paintings were imported - Redemption of confiscation on payment of penalty - Discrepancy in bill of entry - difference of opinion - Held that - matter referred to larger bench with the following questions - Whether on the facts and circumstances of the case denial of amendment to Bill of Entry was justified and imposing of redemption fine is sustainable and penalty reducible to Rs.1,00,000 /- (Rs. One Lakh) as held by Hon ble Member (Technical). - or - Whether on the facts and circumstances of the case upholding Order-in-Appeal is maintainable rejecting the appeal of revenue as held by Hon ble Member (Judicial).

Summary

Issues:
- Amendment of Bill of Entry under Section 149 of the Customs Act, 1962
- Confiscation of imported paintings due to misdeclaration
- Penalty imposition on the importer
- Interpretation of intentional versus unintentional misdeclaration

Amendment of Bill of Entry under Section 149 of the Customs Act, 1962:
The case involved the importer filing a Bill of Entry declaring only one painting, 'Bindu,' while the consignment actually contained two paintings. The importer later requested an amendment to include the second painting, 'Rajasthan,' citing oversight as the reason for the initial misdeclaration. The Commissioner (Appeals) allowed the amendment under Section 149 of the Customs Act, emphasizing the provision's relevance in rectifying unintentional mistakes before goods examination. However, a separate opinion was recorded, questioning the permissibility of the amendment and the genuineness of the mistake, leading to a difference of opinion between the members.

Confiscation of imported paintings due to misdeclaration:
The Customs authorities confiscated one of the imported paintings due to the initial misdeclaration in the Bill of Entry. The original adjudicating authority imposed a redemption fine and penalty on the importer for the misdeclaration. The Commissioner (Appeals), on the other hand, held in favor of the importer, considering the misdeclaration as unintentional and permissible for amendment under Section 149 of the Customs Act. The differing opinions within the Tribunal revolved around the deliberate versus unintentional nature of the misdeclaration and its implications on the confiscation and penalty imposition.

Penalty imposition on the importer:
The dispute also centered on the imposition of a penalty of Rs.2,00,000 on the importer for the misdeclaration in the Bill of Entry. While the Commissioner (Appeals) set aside the penalty, one member of the Tribunal disagreed, emphasizing the deliberate nature of the misdeclaration and the attempt to evade duty liability. The differing views led to a partial allowance of the appeal, reducing the penalty to Rs.1,00,000 based on the conscious misdeclaration and intent to evade customs duties.

Interpretation of intentional versus unintentional misdeclaration:
The Tribunal analyzed whether the misdeclaration of the imported paintings was intentional or unintentional. The importer claimed that the misdeclaration was due to oversight, as both paintings were invoiced on the same day for the same value. The Tribunal considered factors such as the timing of the request for amendment, the similarity between the invoices, and the conscious decision to declare only one painting. While one member viewed the misdeclaration as deliberate, leading to justified confiscation and penalty imposition, the other member supported the Commissioner (Appeals)' decision to allow the amendment under Section 149, emphasizing the need to rectify unintentional errors in customs declarations.

This detailed analysis highlights the key legal aspects and arguments presented in the judgment, focusing on the amendment process, confiscation, penalty imposition, and the interpretation of intentional versus unintentional misdeclarations in customs declarations.