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TMI Blog2020 (1) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to present manually the bill of entry and, therefore, the respondents ought to have considered the request of the petitioner for withdrawal of the manual bill of entry, which was presented for regularisation, needs no countenance. Whether the customs authorities are entitled to assess the impugned vessel to duty, on the premise that the bill of entry is filed in the year 2018, and also collect duties and tax prevalent in 2018 despite the fact that the vessel is admittedly imported into the Indian waters on 28.05.2012 more particularly when the customs duties applicable at that point of time viz., 28.05.2012 were nil and when the integrated tax in terms of Section 3(7) of the Customs Tariff Act, was a levy introduced only w.e.f 01.07.2017? - HELD THAT:- Whether the bill of entry has been presented before the date of entry or after the date of entry, the bill of entry shall be deemed to have been presented on the date of actual entry inwards and the said date of entry shall be reckoned as the relevant date for application of the law prevalent as on that date. The law prevalent as on the date of the import of the vessel in the case on hand would only be applicable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India; and c. To call for the records of the letter bearing number F.No.S6/108/2018-IMP and dated 19.09.2018 from the Respondent No.1 and to quash the same; and d. pass such other order(s) as this Hon ble Court deems fit and proper in the extraordinary circumstances of the case in the interests of justice. We have heard the submissions of Sri Rohan P. Shah, learned senior counsel representing Sri K. Vivek Reddy, learned counsel appearing for the petitioner; of Sri Y.N. Vivekananda, learned senior standing counsel for Central Excise, Customs Service Tax Department appearing for respondents 1 to 3; and, of Sri B. Krishna Mohan, learned Assistant Solicitor General of India appearing for the 4th respondent. We have perused the material record. The case of the petitioner and the submissions made on its behalf are as follows: - The petitioner company with its fleet of 49 (owned) vessels provides shipping services across the world, which entail transportation inter alia of crude oil, petroleum products, gas and dry bulk commodities. The petitioner is registered primarily as a supplier of services un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y letter, dated 01.06.2018. While clarifying that there is no duty implication as the applicable customs duty and additional customs duty are NIL at the first time of the import of the vessel, regularisation of the importation of the vessel was sought. Thereafter, a show cause notice, dated 03.07.2018, was issued by the 2nd respondent calling upon the petitioner to show cause as to why non inclusion of the vessel in the IGM and non filing of the bill of entry should not be considered as violations of Sections 30 46 of the Customs Act, 1962, and why penalty for violations should not be levied on the importer. The show cause notice specifically noted that the import of the vessel into Indian waters is on 28.05.2012. Subsequently, the 2nd respondent passed an order in original, dated 06.07.2018, stating that though the import of the vessel was on the said date, there are violations of the above said provisions and consequently a penalty of ₹ 25,000/- and a penalty of ₹ 60,000/- are respectively leviable under Section 30 and under Section 117 for violation of Section 46 of the said Act. The petitioner complied with the said order and made the deposit of the penalties on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en withdrawing the manual bill of entry so filed. However, the 2nd respondent is seeking to continue with the assessment/re assessment proceedings of the vessel and has fixed the personal hearing on 21.12.2018, by intimating the same by letter, dated 10.12.2018. The respondents have neither withdrawn their actions to assess/re-assess the vessel nor issued a closure report post payment of penalties as per the order levying penalties. The vessel is imported to India in May, 2012. The respondents are seeking to assess/re-assess the vessel imported to India in May, 2012, only for the reason that integrated tax @ 5% is imposed on the levy of vessels falling under Chapter heading 8901 when imported into India for the first time on or after 01.07.2017 in terms of Section 3(7) of the Customs Tariff Act, 1975. The levy of integrated tax was only introduced w.e.f 01.07.2017. Hence, it is wholly inapplicable to the import of the vessel made in May, 2012 by the petitioner. The vessel has been operating as a conveyance as defined under Section 2(9) of the Customs Act, 1962. Being aggrieved of the actions of the customs authorities, the present writ petition is filed. On 19.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due process of law was being undertaken and being attempted to be completed by the respondents. As per the provisions of the Act, on import of vessel into India, the importer is under an obligation to make a declaration under Section 30 of the Customs Act, 1962 and it is an intimation about the arrival of the vessel. A declaration under Section 46 of the said Act is also necessary. It is a declaration with the details of the value and classification of the goods in the form prescribed (the bill of entry) for self assessment. On filing of such declaration, the proper officer of the customs, after scrutiny and ascertainment of accuracy of such declarations, passes an order for home consumption under Section 47 of the said Act. It completes the import of such goods brought into India. Until all the obligations are discharged, the imported goods remain imported goods as per the definition in the Customs Act, 1962. Since the vessel remains an imported goods until an order for home consumption is passed, and as the obligation under the law is not discharged, and as the self assessed bill of entry is filed in the year 2018, the petitioner was accorded an opportunity as per principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and not the law prevalent on the date of belated filing of the bill of entry due to non filing of the bill of entry on the date the vessel was imported into India. We have given earnest consideration to the facts submissions. The first question is as to whether the levy of the penalty under order, dated 06.07.2018, and the deposit of the same by the petitioner absolved the petitioner from discharging of all its liabilities in respect of the import of the vessel, on 28.05.2012, into Indian waters; and, if so, whether the petitioner is not required to file the manual bill of entry at any time later and is, therefore, entitled to withdraw the manual bill of entry having filed, on 10.07.2018. Admittedly, the vessel was imported into the Indian waters, on 28.05.2012. At that time, no bill of entry was filed. However, the case of the petitioner is this: At the time of import into India, the petitioner tried to file the bill of entry for the vessel through their agent, K. Ramabrahmam sons Pvt.Ltd. The Steel Authority of India Limited (SAIL) submitted a letter to the 2nd respondent Assistant Commissioner of Customs (Import), on 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me final and the importation is regularised on payment of penalty. The petitioner also submits that a request was made for withdrawal of the manual bill of entry. The petitioner further contends as follows: - If the customs authorities want to undertake the assessment/re assessment in 2018 as suggested in the letter, dated 19.09.2018 and not as on 28.05.2012, as requested in the manual bill of entry, the petitioner is then withdrawing the manual bill of entry so filed. The legal obligation to file a bill of entry even if the vessel on its import into Indian waters was exempt from duty is not in dispute. The penalties were imposed under Sections 30 46 of the Customs Act. Section 30 of the said Act casts an obligation to make a declaration, which is an intimation about the arrival of the vessel. The prescribed form in this regard is the Import General Manifest (IGM). Section 46 of the Customs Act reads as under: 46. Entry of goods on importation. - (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting electronically on the customs automated system to the proper officer a bill of entry for home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. Be it noted that the above provision of law is amended from time to time and the period at any time not exceeding thirty days prior to in the proviso under sub Section (3) was inserted by the Finance Act w.e.f 29.03.2018. Be that as it may. On a harmonious consideration of the facts in juxtaposition with the provisions of law, it reflects that the imposition of the penalty or a direction to the importer to pay charges is for contravention of the provisions of Sections 30 46 of the Act, which is prescribed, and not for absolving or discharging the importer from the liability to pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of such entry inwards or the arrival, as the case may be. Section 2(15) duty means a duty of customs leviable under this Act. Section 3(7) of the Customs Tariff Act: Any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8) [or sub section (8A) as the case may be. In this context, it is pertinent to now refer to the following decision: Order, dated 22.01.2012, of the High Court of Judicature at Bombay (Appellate Site) in W.P.(L).no.2921 of 2011 [between: SEAMEC Limited Anr and Union of India Ors]. The facts in the above decision are as follows: - A vessel was originally imported by Essar Shipping in 1988. The vessel is stated to have been purchased by the petitioners in November 1993 as an Indian Flag Vessel. The vessel was sent out of the territorial waters for purpose of repairs. The vessel returned on or about 01.12.2011 and was seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was a notification exempting the vessel from customs duty holding the field. In that view of the matter, the High Court of Judicature at Bombay held that for the purpose of securing the provisional release of the vessel under Section 110A, the revenue would not be justified in including the value of the vessel of ₹ 53.55 Crores. Hence, the first condition was scaled down requiring to make a deposit of a duty in an amount of ₹ 12.77 Crores. In the decision of the CESTAT in Samson Maritime Ltd., v. Commissioner of Customs (Import), Mumbai [2016 (333) ELT 148 (Tri.Mumbai)], the facts and ratio are as follows: A Tug was imported and brought into India (at Chennai port) on a contract in November, 1997. No import duty was payable on ships imported during that period. The Tug was purchased by the appellant therein, on 18.03.1998. Thereafter, it was used for coastal runs in India. Port clearances were being granted for coastal runs for over a period of 14 years. At the time of initial import in 1997, customs duty on bunkers and consumables was paid by filing bill of entry giving details thereof as mentioned in the IGM for dutiable items. Customs authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of bill of entry for regularisation of import as envisaged in Board s circular 16/2012, dated 13.06.2018, and that in terms of Section 15 of the Act, the rates of duty and tariff valuation on the date of filing of bill of entry, that is, 10.07.2018 are applicable. We are not impressed with this submissions for the following reasons and the contents of the provisions of law referred to supra: Admittedly the vessel is imported into the Indian waters on 28.05.2012 and the vessel was allowed to run after giving necessary port clearances for such runs on numerous occasions from its entry in the year 2012 till the manual bill of entry is filed. On coming to know of violations, a show cause notice was issued; and, by an order, dated 06.07.2018, penalty was imposed and thereafter penalty was deposited and a manual bill of entry was filed on 10.07.2018. Admittedly, as on the date of the import of the vessel into Indian waters on 28.05.2012 applicable customs duties were nil ; and, the integrated tax in terms of Section 3(7) of Customs Tariff Act, 1975, was not introduced. Learned counsel for the petitioner quoted the following hypothetical propositions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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