2018 (7) TMI 1606 - AT - Customs

Failure to file the required Bill of Entry - appellant, a declared consignee for the goods - Mr. R.K. Nayyar, a friend of the appellant, had placed an order with M/s. A.K. International Trading Co. Ltd., Zhejiang, China in the name of the appellant. Mr. R.K. Nayyar had then requested the appellant to clear the goods and it was then that the appellant came to know of the order placed by Mr. Nayyar - Confiscation - penalty. Held that - The Commissioner failed to appreciate that in the access of any Bill of Entry which is yet to be filed by the assessee/consignee, there can be no scope for alleged evasion of anti dumping or basic customs duty. No statement or other evidence has been put forth to establish such intent or evasion of duty either. The appellant being no more than a declared consignee in the subject consignment, has also not remitted any payment against the said goods and exercised no rights of ownership thereon either. Section 30(3) of the Act provides that If the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented - It is unfathomable that the desire to ensure that the shipping documents were consistent with each other and fully reconciled with the shipping goods, could be attributed to a fraudulent intention. Such implication makes 30 (3) of the Act totally redundant. In the event of the amendment being proper, there can be no basis for imposing fine or penalty in terms of Section 111(f), 111(g) or 112 (a) of the Customs Act, 1962. In the absence of finding of a fraudulent intention and the need for adjudication of the application for amendment, the action of the lower authorities in proceeding to confiscate the goods, impose fine and penalty was not warranted - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Confiscation of goods under Sections 111 (f) and 111 (g) of the Customs Act, 1962 for failure to file Bill of Entry. Imposition of penalty under Section 112 (a) of the Act. Allegations of fraudulent intention by the consignee. Request for amendment of Import General Manifest (IGM) and subsequent rejection. Applicability of Section 30(3) of the Act in permitting amendment of import manifest.

Confiscation of Goods and Penalty Imposition:
The Adjudicating Authority confiscated 78560 calculators under Sections 111 (f) and 111 (g) of the Customs Act, 1962 due to the appellant's failure to file the required Bill of Entry. Additionally, a penalty of &8377; 6,00,000/- was imposed under Section 112 (a) of the Act. The appellant challenged this order, arguing lack of fraudulent intent and non-remittance of payment for the goods. The Tribunal observed that without filing a Bill of Entry, there could be no evasion of duty, and the appellant had not attempted to evade payment. Citing precedent, the Tribunal held that penalty under Section 112 (a) was not applicable in the absence of a filed bill of entry. It was also noted that the responsibility for misdeclaration in the IGM rested with the declarant, the Steamer Agent, not the consignee.

Amendment of Import General Manifest (IGM):
The appellant requested an amendment to the IGM to include electronic calculators along with the declared PVC water pump. The Commissioner rejected the amendment, attributing fraudulent intention to the consignee. The Tribunal disagreed, stating that ensuring consistency in shipping documents did not imply fraudulent intent. Section 30(3) of the Act allows for amendment of import manifest if incorrect or incomplete without fraudulent intention. The Tribunal held that in the absence of fraudulent intent, confiscation of goods, fine, and penalty were unwarranted.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal and providing consequential relief to the appellant. The judgment emphasized the importance of establishing fraudulent intent for confiscation, fine, or penalty under the Customs Act, 1962. The decision highlighted the distinction between consignee responsibilities and declarant obligations, ultimately ruling in favor of the appellant due to the absence of fraudulent intent and the need for proper adjudication of the amendment request.