2020 (3) TMI 493 - AT - Customs

Amendment of Shipping bills - appellant requested for amendment and reassessment of their Bill of Entry under section 149 and 17 of the Customs Act, 1962 and allow clearances of the imported goods under Advance licence - revenue neutrality - HELD THAT - As per the facts of this case, there was no demand of ADD by the department at the time of filing of Bill of entry, therefore neither the department nor the Appellant was aware of levy of ADD. Had the ADD demanded at the time of filing of Bill of Entry, the Appellant could have cleared the goods under Advance licence which was very much existing on the date of filing of Bill of Entry. From the plain reading of section 149, the only requirement for amendment is that the document related to the amendment should be available on record at the relevant time. In the present case on the date of filing of bill of entry the Advance licence was very much in possession of the Appellant, therefore the criteria for amending the Bill of Entry u/s 149 stands fulfilled. The contention of the lower authority is that the proposal for option of clearances under Advance licence was made after 15 days, therefore the same is afterthought. This contention of Revenue cannot be accepted for the reason that it is at that time when the department has raised the demand of Anti Dumping Duty, the Appellant proposed to clear the goods under Advance licence, therefore firstly there is no delay in making request for amendment. Secondly no time limit has been prescribed under section 149 for such amendment. This is the fit case for allowing the amendment requested by the Appellant under section 149 - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Amendment of Bill of Entry under section 149 of the Customs Act, 1962 for clearance under Advance licence instead of duty payment. Observance of principles of natural justice. Demand of Anti Dumping Duty (ADD) after Bill of Entry filing. Revenue neutrality in case of paying all duties including ADD.

Amendment of Bill of Entry under Section 149:
The Appellant filed a Bill of Entry for carbon steel seamless mother pipes and later requested an amendment under section 149 to clear goods under an Advance licence. The Advance licence was issued before the out of charge of Bill of Entry, fulfilling the requirement of section 149. The Appellant argued that the proposal to clear goods under Advance licence was prompted by the subsequent demand of ADD, not as an afterthought. The Tribunal analyzed section 149, which requires the relevant document to be available at the time of filing, and found that the Advance licence fulfilled this criterion. The Tribunal rejected the revenue's contention of delay in the proposal, citing no prescribed time limit under section 149 and supported the Appellant's case based on previous judgments. The Tribunal concluded that the amendment requested by the Appellant was permissible under section 149.

Observance of Principles of Natural Justice:
The Commissioner (Appeals) had remanded the matter to the lower authority due to non-observance of natural justice principles. The Adjudicating Authority disallowed the amendment request and clearance under Advance licence, leading to the Appellant's appeal. The Tribunal reviewed the case and found that the Appellant's actions were in response to the ADD demand, not an afterthought. By considering the facts and legal provisions, the Tribunal determined that the Appellant's request for amendment under section 149 was justified, thereby ensuring adherence to natural justice principles in the decision-making process.

Demand of Anti Dumping Duty (ADD) Post Bill of Entry Filing:
The department requested ADD payment after the Bill of Entry filing, prompting the Appellant to seek clearance under an Advance licence. The Tribunal noted that neither party was aware of the ADD levy at the time of filing. Given this scenario, the Tribunal found that the Appellant's request for amendment under section 149 was valid, as the Advance licence existed before the Bill of Entry out of charge. The Tribunal's analysis focused on the timing of the ADD demand and the Appellant's subsequent actions, leading to the decision to allow the requested amendment and clearance under the Advance licence.

Revenue Neutrality in Duty Payment:
The Appellant argued that paying all duties, including ADD, would be revenue-neutral as the duties were refundable through drawback brand rate fixation, as the imported goods were used in manufacturing exported goods. This argument aimed to demonstrate that there would be no revenue loss to the department if all duties, including ADD, were paid. The Tribunal considered this argument in the context of the case and the legality of the requested amendment under section 149, ultimately allowing the appeal and setting aside the impugned order.

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