2010 (2) TMI 448 - HC - Customs

Bill of entry - Amendment to bill of entry - Goods had been cleared to home consumption, hence section 149 of Custom Act, 1962 cannot be applied unless the specific conditions mentioned therein satisfied. Original authority rejected amendment on the ground that same would entail re-quantification of duty. Held that - impugned order does not indicate why the officer ought to have exercised his discretion u/s 149. decision of appellate tribunal is devoid of reason. Appeal allowed. Respondent permitted to apply for rectification of clerical and arithmetical error under section 154.

Summary

Issues:
Amendment of Bill of Entries under Section 149 of the Customs Act - Re-quantification of duty - Applicability of Section 149 after goods clearance - Exercise of discretion by the Appellate Tribunal - Comparison with Section 154 for clerical and arithmetic errors.

Analysis:
The case involved the appellants importing raw sugar for conversion into white sugar under the DEEC Scheme, where the issue arose regarding the correction of Central Excise Classification for CVD/Additional duty in the Bill of Entries. The appellants sought an amendment to reduce the CVD from 16% to Rs. 85/- per quintal or Rs. 850/- per Metric Ton based on Chapter Note 2 to Chapter 17 of the Central Excise Tariff, 1985. The rejection of this amendment by the original authority led to appeals and subsequent dismissal based on previous decisions (Para. 1).

The matter was then taken to the Appellate Tribunal, which allowed the appeal stating that the denial of amendment solely on re-quantification grounds was not valid. The Tribunal's decision was challenged through two appeals questioning the correctness of the Tribunal's grounds (Para. 3).

The substantial questions of law admitted for consideration were whether the Tribunal was correct in sustaining the appeal on unconsidered grounds and if the Tribunal could exercise the proper officer's discretion under Section 149 of the Customs Act without the officer's opportunity to do so (Para. 4).

The appellant's counsel argued against the Tribunal's order, citing Supreme Court precedents and previous decisions, emphasizing that the Tribunal's decision could lead to re-assessment. On the other hand, the respondent's counsel contended that the duty payable remained nil before and after the amendment, thus justifying the amendment request (Para. 5-6).

Section 149 of the Customs Act was pivotal in this case, outlining the conditions for document amendments post-goods clearance. The Court noted that unless all conditions were met, Section 149 could not be applied, and the Tribunal's lack of reasoning on this aspect was highlighted (Para. 7-8).

The respondents referred to a Kerala High Court decision on rectification under Section 154 for clerical and arithmetic errors, suggesting that Section 149 might not be applicable in such cases. The Court found the Tribunal's decision lacking in reasoning and allowed the appeals, emphasizing the need for proper exercise of discretion under Section 149 (Para. 9-10).

In conclusion, the Court allowed the appeals, directing the respondents to apply for rectification under Section 154 if necessary, without requiring leave, to be dealt with according to law (Para. 11).