2015 (10) TMI 1285 - HC - Customs

Application for modification in the Bill of entry or re-assessment of bill of entry - assessee initially paid the CVD using DEPB credit - What the respondent/assessee actually requested in their representation was for re-assessment of their Bill of Entries . But the only object of the assessee in making such a request was to enable them to pay CVD by cash and to seek equivalent credit in DEPB Scrip. - Powers of the tribunal whether Tribunal was correct in sustaining the appeal - Held that - Theoretically our answer would be in the negative that is in favour of the revenue. Whether a miscellaneous provision of law can be invoked to permit a thing which is prohibited by a specific provision or not - Held that - Even here if we divest this case from the rest and look at the question of law on a theoretical basis it is correct to say that if something is not permitted by a specific provision neither of the parties can take recourse to a residuary or an omnibus provision. But unfortunately what the Original as well as the first Appellate Authorities had lost sight of is the fact that the assessee actually wanted the entries in their Bill of Entries to be modified only for the purpose of enabling them to make payment in cash - It is not necessary for an assessee while making a request to the jurisdictional Excise Officer to quote a provision of law or to use only the proper language as stated in the statute. Whether Tribunal can exercise the discretion of the proper officer under Section 149 of the Customs Act 1962. - Held that - Without quoting Section 149 and without using the appropriate language relevant for the action namely Amendment of Bill of Entries the assessee had used the wrong expression re-assessment . This cannot be taken advantage of by the Department to deprive the assessee from making use of DEPB Scrip for claiming credit and also disabling them to make payment in cash. The assessee cannot be made to lose on both sides by quoting a simple provision of law and raising a theoretical proposition. Decided partially in favour of the assessee.

Summary

Issues Involved:
1. Interpretation of statutory provisions under the Customs Act, 1962 regarding the amendment of Bill of Entries.
2. Validity of invoking Section 149 for amending Bill of Entries.
3. Discretion of the Tribunal in allowing amendment of Bill of Entries.

Analysis:

Issue 1: Interpretation of statutory provisions regarding the amendment of Bill of Entries
The case involved a dispute where the respondent/assessee sought to amend their Bill of Entries to change the method of payment of countervailing duty (CVD). The Tribunal allowed the amendment based on the contention that under Section 149 of the Customs Act, an amendment of the Bill of Entries was permissible. However, the Original Authority and the Appellate Authority rejected the claim, stating that re-assessment was only possible at the instance of the revenue. The High Court noted that the assessee's request was essentially for the amendment of the Bill of Entries to enable them to pay CVD by cash. Despite using the term "re-assessment" instead of "amendment," the Court held that the substance of the request was crucial, not the terminology used. The Court emphasized that the assessee should not be deprived of their rights based on technicalities and theoretical propositions.

Issue 2: Validity of invoking Section 149 for amending Bill of Entries
The High Court addressed the question of whether a residuary provision like Section 149 could be utilized when a specific provision prohibited certain actions. The Court acknowledged that generally, parties cannot resort to a residuary provision if something is not permitted by a specific provision. However, in this case, the Court found that the assessee's request for amending the Bill of Entries to change the payment method was valid, even if the terminology used was not precise. The Court emphasized that the substance of the request and the practical implications were more important than technicalities.

Issue 3: Discretion of the Tribunal in allowing amendment of Bill of Entries
The Tribunal exercised its discretion to allow the assessee to carry out the requested amendment of the Bill of Entries under Section 149. The High Court upheld the Tribunal's decision, emphasizing that the assessee's genuine intention to modify the entries for practical purposes should be considered. The Court ruled in favor of the assessee, highlighting that the revenue should not exploit technical errors in the language used by the assessee to deny them their rights. The judgment dismissed the appeal by the Revenue, emphasizing that the substance of the request and the practical implications should prevail over technicalities in statutory interpretation.

In conclusion, the High Court's judgment focused on upholding the rights of the assessee in seeking to amend the Bill of Entries for practical purposes, emphasizing substance over form and practical implications over technicalities in statutory interpretation.