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TMI Blog2013 (9) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfied for availing the provisions of Section 149 was that the documentary evidence on the basis of which the amendment was sought, should be in existence when the goods were cleared – Powers of discretion u/s 149 had been provided to the Customs Officers to allow amendments in genuine cases - it was evident that the assessee’s case was a genuine one. There was a genuine error committed by the assessee in not filing the freight bill at the time of filing of the Bill of Entry - When the error was noticed, immediately thereafter, the assessee took action to rectify the mistake by making an application u/s 149 along with documentary evidence in support of the claim for actual freight - there was enough justification for the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the lower appellate authority who vide the impugned order dismissed their appeal and hence the appellant is before us. 3. The learned counsel for the appellant made the following submissions: 3.1 When the Bill of Entry was filed they had also submitted the freight bill to the CHA but the CHA committed an error and did not submit the freight bill and, therefore, the goods were assessed taking 20% of the FOB value towards freight and accordingly the appellant discharged duty liability on the freight amounting to Rs.15,02,622/- but immediately thereafter, they noticed the error and submitted a letter dated 02/05/2009 to the Dy. Commissioner of Customs, Nhava Sheva enclosing therewith copy of the Bill of Entry, duty paid challans a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Please process the case as a refund case." In pursuance of the said decision of the Commissioner, the case was sent to the refund section and the impugned order has been passed denying the refund. Thus, the appellant has been put to loss because of the delay in the decision making process by the department whether to allow the amendment of the Bill of Entry under Section 149 or to treat it as a claim for refund. Accordingly, it is prayed that the application for amendment of the Bill of Entry under Section 149 be allowed and on such amendment relief be granted to them. 4. The Dy. Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities and relies on the decision of the hon'ble High Court of Madras in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." Thus the only condition required to be satisfied for availing the provisions of Section 149 is that the documentary evidence on the basis of which the amendment is sought, should be in existence when the goods were cleared. In the instant case the Bill of Entry was filed on 21/04/2009 and the freight invoice indicating the amount of freight is dated 02/04/2009. In other words, the documentary evidence which the appellant submitted was in existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k action to rectify the mistake by making an application under Section 149 along with documentary evidence in support of the claim for actual freight. Thus there is enough justification for the proper officer to exercise the power under Section 149. Powers are given to the officers to sub-serve justice and not to deny them. In our view, in the present case, the department ought to have allowed the amendment of the Bill of Entry under Section 149 and give consequential relief to the appellant. 6. Therefore, we remand the matter back to the adjudicating authority to consider the application of the appellant to consider amendment under Section 149 and thereafter consider the refund claim of the appellant in accordance with law. 7. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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