2022 (2) TMI 154 - HC - Customs

Seeking amendment in the Bills of entry - whether the petitioner was entitled to file an application under Section 149 of the Customs Act, 1962 for amending the Bill of Entry which were filed between December 2018 to March 2019 and another three set of Bill of Entries during December 2018? - violation of principles of natural justice - HELD THAT - The appeal filed by the petitioner before the second respondent ought to have been decided on merits as to whether the petitioner had a case for interference. Section 128 of the Customs Act, 1962 contemplates an appeal against the decision or order passed under the Act by an officer of the Customs lower in rank than the Principal Commissioner or Commissioner of Customs and such appeal can be filed within a period of 60 days from the date of communication of the order. The proviso further grants 30 days time period subject to appeal giving substantial reasons for not filing an appeal within 60 days. Therefore, the dismissal of the appeal filed by the petitioner against the communication dated 21.07.2020/24.09.2020 by the second respondent vide impugned cannot be sustained. There is a violation of the principles of natural justice, the impugned order passed by the second respondent is quashed and the case remitted back to pass orders on merits by deciding the issue as to whether the petitioners was indeed entitled to file an appeal against the impugned communication - appeal allowed by way of remand.

Summary

Issues:
1. Entitlement to file an application under Section 149 of the Customs Act, 1962 for amending the Bill of Entry.
2. Classification of Antennas for Base Transmission Station.
3. Time limitation for filing appeals under Section 128 of the Customs Act, 1962.
4. Violation of principles of natural justice in passing orders.
5. Alternative remedy before the Tribunal under Section 129A of the Customs Act, 1962.

Analysis:

1. The petitioner imported Antennas for Base Transmission Station and initially classified them under Customs Tariff Sub-Heading 85.17.62.90. The department insisted on a different classification, resulting in higher custom duty. The petitioner sought to amend the Bill of Entry under Section 149 of the Customs Act, 1962 based on a Tribunal decision related to a similar issue with another importer, M/s.Reliance Jio Infocom Ltd.

2. The Tribunal's decision prompted the petitioner to file for a refund of customs duty paid under protest for earlier imports. Subsequently, the petitioner filed applications under Section 149 of the Customs Act, 1962 to amend the Bill of Entries filed between December 2018 to March 2019. The Commissioner of Customs (Appeals) rejected the appeal, citing time limitations under Section 128 of the Customs Act, 1962.

3. The rejection of the appeal was based on the argument that the appeal for classification change should have been filed within three months from the date of assessment, which was not done in this case. The petitioner contested this decision, highlighting the acknowledgment of the appeal filing date and the need for a fair hearing before dismissing the appeal solely on the grounds of time limitation.

4. The petitioner argued that the impugned order was passed in violation of principles of natural justice, emphasizing the need for a proper hearing and consideration of the merits of the case. The Court agreed, noting that the appeal should have been decided on its merits, especially considering the Tribunal's decision favoring the petitioner's classification stance.

5. The respondent suggested that the petitioner had an alternative remedy before the Tribunal under Section 129A of the Customs Act, 1962. However, the Court found the dismissal of the appeal by the second respondent unjustified and lacking proper consideration of the petitioner's entitlement to appeal against the communication dated 21.07.2020. The impugned order was quashed, and the case was remitted back for a fresh decision on its merits, ensuring the petitioner's right to be heard.