2020 (10) TMI 970 - HC - Customs

Refund of excess duty paid on account of wrong declaration of invoice value - rejection of request for amendment of the bills - HELD THAT - Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were in existence at the time of the goods were cleared, deposited or exported to establish the error - The lis in this matter revolves around the interpretation of the phrase in existence , as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, on record that such amendment could even be considered. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were in existence at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually in existence is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being in existence at the relevant time to evidence an error sought to be amended. The rejection of the request for amendment by the respondent is set aside to be re-done de novo - Petition allowed.

Summary

Issues:
1. Request for amendment of Bills of Entry under Section 149 of the Customs Act, 1962.
2. Interpretation of the phrase 'in existence' in the context of providing evidence for amendment.
3. Rejection of the request for amendment by the customs authorities.

Analysis:

Issue 1: Request for Amendment of Bills of Entry
The petitioner, engaged in importing IT products, sought amendment of 17 Bills of Entry (B/E) due to errors in unit prices of imported products. Despite providing supporting documents like purchase orders and communications with suppliers, the Deputy Commissioner of Customs rejected the amendment request as goods were already cleared for home consumption. However, the proviso to Section 149 allows post-clearance amendments with contemporaneous evidence of errors.

Issue 2: Interpretation of the Phrase 'In Existence'
The crux of the matter lies in interpreting the phrase 'in existence' concerning the evidence required for amendment. The revenue contended that documents must be 'on record' to be considered, while the Court emphasized that the provision allows the assessee to present documents 'in existence' at the time of clearance to prove errors. The genuineness of such documents is subject to examination by customs authorities.

Issue 3: Rejection of Amendment Request
The rejection of the amendment request solely on the availability of an appellate remedy was deemed inappropriate. The Court clarified that factual errors necessitate rectification through amendment, not appeal. Consequently, the Court set aside the rejection, granting the petitioner the opportunity to submit contemporaneous documents for reevaluation within a specified timeframe.

In conclusion, the Court allowed the Writ Petition, directing a fresh review of the amendment request based on the presented contemporaneous evidence. The revenue was instructed to assess the submitted documents for their contemporaneous nature and make a decision within six weeks. No costs were awarded in the judgment.