2024 (9) TMI 191 - AT - Customs

Rejection of the amendment under Section 149 of the Customs Act, 1962 - rejection of amendment on the ground that when the bills of entry were filed Explanation to Rule 96(10) of CGST Rules was already inserted vide N/N.16/2020 Central Tax dated 23.03.2020 and the appellant could have exercised the option either to pay or not to pay any of the duties - whether the appellant is entitle to seek the amendment of the BEs under Section 149 of the Customs Act? - HELD THAT - From the impugned order, it is evident that the appellant in their submissions have contended that DRI vide their letter, 20.11.2020 in other cases requested to the Adjudicating Authority to consider the appeals of all importers, who are willing to pay such IGST along with interest, however, as observed by the Commissioner, (Appeals) the said letter was not submitted by the appellant. It is, therefore, directed that both the appellant and the Revenue may place on record the particulars of all the cases, where amendment has been allowed in similar circumstances so as to enable the Adjudicating Authority to arrive at a consistent and uniform conclusion. The impugned order is hereby set aside - The appeal is, accordingly allowed by way of remand.

Summary

Issues:
1. Challenge to rejection of amendment under Section 149 of the Customs Act, 1962.
2. Entitlement to seek amendment of Bill of Entries (BEs) under Section 149 of the Customs Act.
3. Interpretation of relevant provisions of CGST Rules and Customs Tariff Act.
4. Application of judicial precedents in similar cases.
5. Compliance with circulars issued by the Revenue for amending BEs.
6. Verification of factual aspects related to payment of IGST.
7. Need for cooperation and submission of requisite information by the appellant.

Detailed Analysis:
1. The appellant sought to amend four Bill of Entries (BEs) for import of "Isomalt ST-M" to forego IGST exemption and avail IGST refund on export of finished goods. The request for amendment was rejected by the authorities based on the principle that once duty exemption is granted, the importer cannot selectively choose which duty to pay later. Both the Adjudicating Authority and the Appellate Authority upheld this rejection, citing the timing of filing the BEs and the appellant's initial choice not to pay certain duties.

2. The central issue in this appeal is whether the appellant is entitled to seek amendment of the BEs under Section 149 of the Customs Act. The appellant relied on a Gujarat High Court decision, which was later overturned by the Supreme Court, emphasizing the requirement to pay duties as per pre-import conditions. The Revenue issued Circular No.16/2023 specifying procedures for amending BEs in cases where duties were not paid initially, following directions from the Apex Court.

3. The High Court of Kerala considered the circular while allowing the amendment of BEs in similar circumstances, emphasizing the difficulties faced by importers in amending BEs despite payment of IGST and compensation cess. The court directed the Revenue to amend the BEs of the petitioners and highlighted inconsistencies in allowing some importers to amend BEs while denying the same relief to others.

4. The appellant's reliance on a previous case related to modvat Credit was also considered, supporting the view that reversal of duty credit amounts to non-taking of credit on inputs. The judgment concluded that the appellant is entitled to seek amendment of the BE, but cooperation and submission of requisite information are necessary. The matter was remanded to the Authorities below for further consideration in light of relevant judicial decisions and circulars.

5. The order set aside the impugned decision and allowed the appeal by way of remand, directing both the appellant and the Revenue to provide details of similar cases where amendments were allowed. The Adjudicating Authority was instructed to verify the factual aspect of IGST payment by the appellant and arrive at a consistent conclusion based on the information provided.

6. The judgment emphasized the importance of cooperation and submission of necessary information by the appellant to facilitate a fair and informed decision by the authorities. The need for uniformity in allowing amendments to BEs in similar circumstances was highlighted to ensure consistency in decision-making.

7. The judgment was pronounced on 3rd September 2024, setting the stage for a thorough review of the case based on the principles outlined in the legal analysis and the need for factual verification regarding IGST payment by the appellant.