2018 (8) TMI 1028 - AT - Customs

Amendment in Bills of Entry - the bills of entry showed import of Tri Ethyl Aluminium packed in two Alkyl Tainers viz. TC 80-0017 and TC 80-0040 from the supplier M/s. Chemtura Sales Europe, B.V. Netherland - case of respondent/importer is that the above B/E was filed inadvertently and they wanted to re-export the Alkyl Tainers after the same are made empty - Held that - There is no mala fide intention on the part of the importer who himself move an application under the provisions of Section 149 of the Customs Act for amendment of B/E. Further the original authority had already allowed the amendment of the B/E under the provision of Section 149 of the Customs Act, 1962 and also extended the benefit of exemption N/N. 104/94 Custom dated 16.03.2004. The Commissioner (A) has rightly observed that there is no revenue loss in the present case and it was only a procedural infraction which was corrected by the Additional Commissioner under Section 149 of the Customs Act, 1962. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appeal against the order passed by the Commissioner (A) upholding the Order-in-Original dated 20.09.2016.
2. Confiscation of Alkyl Tainers under the provisions of the Customs Act, 1962.
3. Imposition of redemption fine and penalty under Section 111 and Section 112 of the Customs Act.
4. Application for amendment of Bill of Entry (B/E) under Section 149 of the Customs Act.
5. Benefit of exemption Notification No. 104/94 Custom dated 16.03.2004.
6. Consideration of mala fide intention of the importer.
7. Revenue loss, procedural infraction, and penalty imposition.
8. Precedents cited regarding penalty imposition for failure to perform a statutory obligation.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (A)'s order upholding the Order-in-Original dated 20.09.2016, which confiscated two Alkyl Tainers imported by the respondent. The Additional Commissioner allowed the importer to redeem the Tainers for re-export upon compliance with specified conditions.
2. The Department contended that upon confiscation, it was mandatory to impose redemption fine and penalty under Section 111 of the Customs Act. However, the Commissioner (A) dismissed the appeal citing the importer's inadvertent error in filing the B/E and the subsequent correction under Section 149 of the Customs Act.
3. The Revenue argued that penalty under Section 112 should have been imposed automatically upon confiscation. Citing a Madras High Court decision, the Revenue claimed non-imposition of penalty was unsustainable. However, the Tribunal found no mala fide intention on the importer's part and noted the procedural correction made by the Additional Commissioner.
4. The Tribunal observed that the importer's application for amending the B/E was allowed under Section 149, and the benefit of exemption under Notification No. 104/94 Custom was extended. The Commissioner (A) emphasized the absence of revenue loss and the inadvertent nature of the error, leading to no penalty imposition.
5. Relying on legal precedents, including a Supreme Court decision, the Tribunal upheld the Commissioner (A)'s order, emphasizing the discretion in imposing penalties for statutory violations. The Tribunal concluded that there was no infirmity in the impugned order and dismissed the Revenue's appeal, cautioning the importer and the Customs House Agent to be more careful in the future.