2015 (10) TMI 325 - AT - Customs

Amendment of prayer Prayer to re-export seized goods Customs seized goods imported on reasonable belief that appellants have imported full machinery in guise of parts in two different consignments to evade ADD Appellate authority confirmed ADD with direction to authority to re-quantify ADD by taking into consideration of amended Notification No. 39/2010 and also set aside fines and penalty Appellant filed application for amendment of prayer of their appeal and also filed stay application for setting aside operation of impugned order Held that - appellants seeks to amend their prayer to allow them for re-export Considered that appellants have not made this plea either before adjudicating authority or before appellate authority Since period of five years were lapsed from date of first import under Bill of Entry, there is merit in appellant s plea as very purpose for which they have imported goods has not been served Therefore application for amendment allowed. Regarding stay application, goods are already under custody of customs and has also undertaken that they will not clear goods so, there is no question of stay of operation of impugned order stay granted.

Issues involved:
1. Amendment of prayer in appeal memorandum seeking re-export of imported goods.
2. Levy of Additional Duty of Customs (ADD) on imports made by the appellants under two Bills of Entry.
3. Imposition of penalties on the appellants and the director of the company.
4. Remand of the matter by the Tribunal to the original authority for fresh consideration.
5. Appeal filed before the Hon'ble High Court of Madras against the remand order.
6. Confirmation of ADD demand and penalties in the denovo order by the adjudicating authority.
7. Partial allowance of the appeal by the Lower appellate authority with a direction to re-quantify the ADD.
8. Miscellaneous application for amendment of prayer and stay application for setting aside the operation of the impugned order.

Analysis:
1. The main issue in the appeals related to the levy of ADD on imports made by the appellants under two Bills of Entry. The Customs seized the goods imported under one Bill of Entry and the seized goods already cleared under another Bill of Entry on the belief that the appellants imported machinery parts to evade ADD. The adjudicating authority confirmed the ADD and imposed penalties, which were set aside by the Commissioner (Appeals) but remanded by the Tribunal for fresh consideration.

2. The appellants filed a miscellaneous application seeking to amend their prayer in the appeal memorandum to allow re-export of the imported goods. The amendment was sought due to the lapse of more than five years since the goods were imported, and the intended purpose was not served. The Tribunal allowed the amendment based on previous court decisions permitting re-export in similar circumstances, subject to the final outcome of the main appeal.

3. The Revenue filed appeals against the impugned order, including setting aside fines and penalties, and objected to the amendment of the prayer. The Revenue argued that the goods had already entered the market, causing injury to domestic industry, and that the amendment should be considered only after the appeal on merits. The Tribunal, however, found merit in the appellant's plea for re-export considering the lapse of time and allowed the amendment.

4. The Tribunal also addressed the stay applications filed by the Revenue, noting that since the goods were under customs custody and the appellants undertook not to clear them, there was no need to stay the operation of the impugned order. The stay applications were disposed of accordingly, and the appeal was scheduled for regular hearing.

5. The judgment highlighted the importance of considering the specific circumstances of the case, including the time lapse since import and the intended purpose of the goods, in allowing the amendment of the prayer seeking re-export. The decision was based on legal precedents and the overall merits of the case, ensuring a fair and just outcome for all parties involved.

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