2019 (5) TMI 672 - AT - Customs

Imposition of late filing fees - belated filing of Bills-of-Entry - Section 46 (3) of the Customs Act, 1962 - HELD THAT - Section 46 deals with entry of goods on importation and also prescribes the time limit for filing the same, apart from prescribing the consequence for failure to adhere to the time limit. The second proviso to Section 46 (3) deals with a situation where, the Bill-of-Entry is not presented within the time specified, which makes the importer liable for such charges for late presentation of the Bill. The above proviso also qualifies the late fees if the appropriate officer is not satisfied with the cause shown for the delay. The Order-in-Original dated 08.11.2017 has nowhere questioned the bona fides of the importer/Customs Broker against whom the said order was passed since it is the first requirement of Section 46 read with proviso to Sub-Clause (3) that the charge of late fee was subject to non-satisfaction of the proper officer as to the sufficiency or otherwise of the cause for delay, which discernibly is not questioned - The impugned order referring to this Order-in-Original dated 08.11.2017, has also not questioned the bona fides of the appellant. It is clear from the impugned order as well as that of the Commissioner (Appeals) that there was no reason/question of non-satisfaction as to the reasonable cause shown by the appellant. It is very difficult to accept as to how the Order-in-Original came to be passed against a Customs Broker just because it made a request - Appellant is clearly not the first importer, there is request for amendment in IGM on record, allowed by the Revenue after collecting requisite fees and these are clearly post-import developments. The subsequent developments, were perhaps necessitated because of the goods being perishable. Clearly, no mala fide is found in the above developments by the Revenue and therefore, it can be safely assumed that the Revenue was otherwise satisfied with sufficient cause . Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal for waiver of penal charges for belated filing of Bills-of-Entry.

Analysis:
The appellant, a Customs Broker, appealed for waiver of penal charges for late filing of Bills-of-Entry, which were rejected by the adjudicating authority and the first appellate authority. The case involved three containers of Raw Cashew Nuts consigned to a new buyer due to financial issues faced by the original consignees. The appellant filed the Bills-of-Entry belatedly and requested waiver of penal charges as per Section 46 of the Customs Act, 1962.

The main point of dispute was the eligibility of the appellant for waiver of late filing fees under Section 46 (3) of the Customs Act, 1962. The second proviso to Section 46 (3) specifies that if the proper officer is not satisfied with the cause shown for the delay, the importer shall pay late charges. However, the CBEC issued Instructions allowing judicious exercise of power by officers and even suggested waiving late charges in certain cases. Subsequent regulations also empowered the proper officer to waive charges if satisfied with the reasons for delay.

The Order-in-Original did not question the importer's or Customs Broker's bona fides, as required by Section 46. The appellant provided explanations for the delay to various Customs authorities, which were not deemed insufficient or improper. The impugned order and the Commissioner (Appeals) decision were found unsustainable as they did not question the sufficiency of the cause shown by the appellant. The appellant, not being the first importer, was considered a savior who came forward later, and the subsequent developments were necessitated due to perishable goods.

Ultimately, the Tribunal found the impugned order unsustainable and set it aside, allowing the appeals for waiver of penal charges. The decision was pronounced in open court on 08.05.2019.