2019 (10) TMI 62 - AT - Customs

Levy of late fee - section 46(3) of Customs Act, 1962 - late filing of Bill of Entry - high seas sale - HELD THAT - The initial purchaser of high seas sales M/s. Vazhavilla Cashews, Kollam could not take delivery of the goods even though they had filed Bill of Entry on 12.8.2017. Therefore, the shipper identified another purchaser namely the appellant therein for clearing the goods. After filing an application for amendment of IGM and also after filing the request for cancellation of Bill of Entry which was ordered on 9.1.2018, the Customs Broker has filed the new Bill of Entry on behalf of the new consignee on 12.1.2018. Thus after obtaining the order of cancellation of earlier Bill of Entry, the new Bill of Entry has been filed within three days - From the facts it cannot be said that the appellants herein has committed any act or omission in causing delay in filing the Bill of Entry. The Tribunal in the case of Blueleaf Trading Company 2019 (5) TMI 672 - CESTAT CHENNAI had occasion to consider a similar situation wherein the late fee imposed was set aside. The late fee imposed is not legal or proper - appeal allowed - decided in favor of appellant.

Summary

Issues: Late fee under section 46(3) of Customs Act, 1962

Detailed Analysis:
1. Late Fee Imposed: The appellant contested the late fee of &8377; 14,95,000 levied under section 46(3) of the Customs Act, 1962. The delay in filing the Bill of Entry was attributed to the original consignee's inability to clear the goods, necessitating the identification of a new buyer, the appellant. The appellant argued that diligent efforts were made to file the Bill of Entry promptly after necessary amendments and cancellations were processed. The appellant contended that the delay was beyond their control and due to bona fide reasons.

2. Contentions of Appellant: The appellant's counsel highlighted that the delay was not intentional and was necessitated by the circumstances arising from the original consignee's inability to proceed with the clearance. The appellant promptly initiated the required amendments and cancellations once identified as the new buyer. The appellant relied on the Standing Order No. 1/2017, emphasizing that late fees should not be imposed routinely and should be waived in cases of genuine delays beyond the importer's control.

3. Department's Argument: The department argued that there was willful delay on the appellant's part in filing the Bill of Entry, justifying the imposition of the late fee. Referring to the provisions of sub-section (3) of Section 46 of the Customs Act, 1962, the department contended that the delay was unjustified as the new purchaser was an Indian unit of the overseas supplier, implying easy access to necessary documents. The Commissioner (Appeals) supported the department's stance, asserting that the late fee was justified based on the delay in filing the required documentation.

4. Judgment: After considering the arguments presented by both sides, the tribunal concluded that the late fee imposed was not legally justified. The tribunal observed that the delay was primarily due to the original consignee's inability to clear the goods, necessitating the identification of a new buyer. The tribunal emphasized that the appellant acted diligently in filing the necessary amendments and cancellations promptly once authorized. Citing the Standing Order and a previous tribunal decision, the tribunal ruled in favor of the appellant, setting aside the late fee and allowing the appeal with any consequential relief.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved, the arguments presented by both parties, and the tribunal's reasoning leading to the final decision to set aside the late fee imposed under section 46(3) of the Customs Act, 1962.