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TMI Blog2021 (8) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent had resubmitted the Bills of Entry with documents in view of the instructions issued by the Department. There is, therefore, no error in the order passed by the Commissioner (Appeals) requiring the Department to re-assess the three Bills of Entry with respect to the rate of Basic Customs Duty applicable on 05.07.2019. The issue arising before the Supreme Court in UNION OF INDIA OTHERS VERSUS M/S GS CHATHA RICE MILLS ANOTHER [ 2020 (9) TMI 903 - SUPREME COURT] was not about non-generation of Bills of Entry numbers, which is the issue in the present case. This judgment would, therefore, not come to the aid of the respondent. Appeal dismissed. - CUSTOMS APPEAL NO. 51072 OF 2020 - FINAL ORDER NO. 51727/2021 - Dated:- 13-8-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO MEMBER (TECHNICAL) Shri Sunil Kumar, Authorized Representative of the Department Shri Kishore Kunal, Advocate for the Respondent ORDER The order dated 18.06.2020 passed by the Commissioner of Customs (Appeals) [ the Commissioner (Appeals) ], by which the Appeal filed by M/s M.D. Overseas Ltd. [ the respondent ] was allowed and the assessment order passed on the three B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The respondent also paid Basic Customs Duty at the increased rate of 11.85 per cent. 5. However, as the respondent did not receive any reply to the letters dated 08.08.2019 and 29.08.2019, the respondent filed a statutory appeal before the Commissioner (Appeals). The Commissioner (Appeals), by the impugned order dated 18.06.2020, allowed the appeals and set aside the assessment of the three Bills of Entry with a direction to re-assess the same at the Basic Customs Duty applicable on 05.07.2019. 6. This appeal has, accordingly, been filed by the Principal Commissioner of Customs to assail the aforesaid order dated 18.06.2020 passed by the Commissioner (Appeals). 7. It is necessary to note the Brief Facts of the Case , as have been stated by the Department in the Memo of Appeal, and they are as follows:- The Importer regularly imports Gold Dore Bars on a regular basis for manufacture and the export of the manufactured Gold Articles and Gold Jewellery. The assessee imported four consignments of Gold Dore Bars classifiable under CTH- 71081200 from foreign suppliers on the basis of invoices and other import documents issued by the overseas suppliers. The Importer pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional unwarranted liabilities on the Importer. Having cleared goods, the Importer sought reasons from the Commissioner for assessment at higher rate and not considering their request. Xxxxxxxxxxx. (emphasis supplied) 8. Shri Sunil Kumar, learned Authorized Representative appearing for the Department made the following submissions:- (i) The respondent failed to co-relate the impugned job numbers claimed in the Impugned Order with the Bills of Entry numbers generated subsequently on re-filing; (ii) The respondent did not file the requisite details/documents in the portal on 05.07.2019; (iii) Being a regular importer, the respondent should have been aware about the Budget Day procedure. Further, despite display on the portal that the website would be closed from 1700 hours on 05.07.2019 for up-dation of budgetary changes, the respondent submitted the requisite data around 1700 hours to take benefit of lesser rate of duty; (iv) The judgments relied upon by the Commissioner (Appeals) are not applicable to facts and circumstances of the instant case; (v) In terms of the Bill of Entry (Electronic Integrated Declaration and paperless) Regulation 2018 [2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Synthetics v/s CC, Tuticorin [2019 (235) E.L.T. 157 (Tri.- Chennai) ]; and (v) The present Appeal has been filed entirely based on inconsistent and incorrect assertions which are contrary to the records of the present case. These are:- (a) Non-correlation of Job Numbers; (b) Non-uploading of complete documentation; (c) Deliberate delay in filing of Bills of Entries; (d) Waiver of delay penalty; and (e) No technical reason or ICEGATE fault. 10. The submissions advanced by the learned Authorized Representative of the Department and the learned Counsel appearing for the respondent have been considered. 11. To appreciate the submissions, it will be necessary to first examine the provisions of the 2018 Regulations. 12. Regulation 2 contains the definition clauses. Sub-clauses (c), (d), (e) and (g) of Regulation 2 are reproduced below: 2. Definitions :- (1) In these regulations, unless the context otherwise requires,- (a) ******** (b) ******** (c) bill of entry means electronic integrated declaration accepted and a unique number generated and assigned to that particular bill of entry by the Indian Customs Electronic Data I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The bill of entry shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration on the customs automated system or by way of data entry through the service centre, a bill of entry number is generated by the Indian Customs Electronic Data Interchange System for the said declaration and the self- assessed copy of the Bill of Entry may be electronically transmitted to the authorised person or printed out at the service centre. 14. The factual position that would emerge after considering the facts stated by the respondent, the facts stated by the Department in the Memo of the Appeal and the findings recorded by the Commissioner (Appeals) are needs to stated. 15. The respondent has stated: (i) It had filed four Bills of Entry with the relevant supporting documents on 05.07.2019 through the ICEGATE portal for the four consignments of Gold Dore Bars that it imported. TRU issued a Circular dated 05.07.2019 that there would be a change in the rate of Basic Customs Duty from 06.07.2019 (00.00Hrs). A Notification dated 06.07.2019 was consequently issued for increasing the Basic Customs Duty from 9.35 per cent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs (Imports) requesting for immediate release of these three consignments; (iii) The importer, from an enquiry from ICEGATE, understood that the three Bills of Entry numbers were not generated on 05.07.2019 due to some technical error at the end of ICEGATE and sent a letter dated 11.07.2019 to the Commissioner (Imports) stating that since the documents and the Bills of Entry were presented on 05.07.2019, they should be processed; (iv) The importer received an e-mail on 12.07.2019 from ICEGATE portal that the three Bills of Entry were not processed after 5 PM due to budget activity on 05.07.2019 and so the importer should re-file the said Bills of Entry; (v) The importer wrote a letter dated 15.07.2019 to the Commissioner of Customs (Imports) stating that since the entire documentation filed on 05.07.2019 was complete in all respects and non-processing of the three Bills of Entry was at the end of the ICEGATE, the importer should not be put to financial prejudice; (vi) The importer re-filed the Bills of Entry on 19.07.2019/20.07.2019 and paid the increased Basic Customs Duty; and (vii) The importer thereafter sent letter dated 19.07.2019 to the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) (7) (8) 1. Seasif Pacific LLC 72403410293 03.07.2019 1655484/19 05.07.19 1.7-19 26.06.19 626 dated 05.07.19 3947409 05.07.19 2. Ocean Elite Limited 02022769935 03.07.2019 1655550/19 05.07.19 OEDB2019- 20/001 02.07.19 629 16:56:57 Dated 05.07.19 201907050 0023350 July 05,19 04:52 PM 4148112 20.07.19 3. Mercantil Fortuna Nueva EIRL 07428234544 01.07.2019 1654834/19 04.07.19 23 01.07.19 630 16:36:27 Dated 05.07.19 201907050 00065330 July 05, 19 04.32 PM 4136846 19.07.19 4. Corporacion Del Centro 72403410212 28.06.2019 1654846/19 04.07.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite data for generation of numbers for the four of Bills of Entry on 05.07.2019 and though one Bill of Entry number was generated on 05.07.2019, but the remaining three Bills of Entry numbers could not be generated because of some technical glitch at the ICEGATE ported and the fact that due to budget activity the files were not processed after 5 pm on 05.07.2019. The Commissioner (Appeals) has also meticulously compared the Bills of Entries numbers generated on 19/20.07.2019 with the corresponding Job Numbers. 20. The issue, therefore, that arises for consideration is that should the importer be required to pay Basic Customs Duty applicable on 05.07.2019, which is the date on which the respondent submitted the Bills of Entry with the requisite data for generation of numbers for the four Bills of Entry or it should be 19/20.07.2019, on which date the three Bills of Entry numbers were generated by the ICEGATE portal. This issue has assumed significance because it was with effect from the midnight of 05.07.2019 that the rate of Basic Customs Duty had increased. 21. According to the respondent, in view of the provisions of section 15 of Customs Act, it is the date of presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts (P) Ltd. vs. Union of India [1995 (76) E.L.T. 531 (Mad.)]. The High Court, in view of the provisions of sections 15 and 46 of the Customs Act, held that presentation of the Bill of Entry in the prescribed form would suffice to confer a right on the importer to have the tariff valuation and the rate of duty in force on the date of presentation of such Bill of Entry. The relevant portion of the judgment is reproduced below: 7. As for the difference in the rate of exchange applied to the case on hand as prevailing on 1-7-1994, the same has been objected to relying upon Sections 14, 15 and 46 of the Act. Section 14 which provides for valuation of goods for purpose of assessment of duty under the Act stipulates in proviso to sub-section (1) of Section 14 of the Act that price shall be calculated with reference to the rate of exchange as in force on the date on which a Bill of Entry is presented under Section 46, or a shipping bill or bill of export, as the case may be, is presented under Section 50. Section 46 of the Act provides that the importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the Importer s Code number was furnished only on the next date will not, in my view, make the Bill of Entry one presented on the next day only. The plea on behalf of the petitioner that if the department could not act upon a Bill of Entry presented with any deficit information, it should be considered as though it has not been presented at all in the prescribed form on the date of its actual presentation, is too wide a plea or proposition which cannot be countenanced, having regard to the object and purpose of the filing of the Bill of Entry as also the specific provisions contained in Sections 14 and 15 to which a reference has already been made. If only the object or the intention of the Legislature was such, as is sought to be projected for the respondents, the provisions contained in Sections 14 and 15 of the Act would have been altogether different and be otherwise referable to the date on which action could be taken, unlike the actual stipulation contained in these provisions which have reference and relation to only the actual date of presentation of the Bill of Entry in the prescribed form. In this case, as noticed earlier, the mere absence of detail or omission in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se range of goods, ranging from dry dates to cement. 3. On 26 August, 2019, a Division Bench of the High Court of Punjab and Haryana allowed a batch of writ petitions under Article 226 of the Constitution [2019 (368) E.L.T. A351 (P H)]. The High Court held that since importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of self- assessment before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted. The High Court held that the importers were liable to pay the duty applicable at the time when-the bills of entry for home consumption were filed under Section 46 of the Customs Act, 1962. The Union or India was ordered to release the goods within seven days on the payment of duty 'as declared and assessed without applying the notification enhancing the rate of duty on goods originating in Pakistan. 22. xxxxxxx Hence, the bill of entry is deemed to be filed and the self-assessment completed when the requirements of Regulation 4(2) are fulfilled namely by the (i) entry or the declaration on the customs automated system; and (ii) generation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which recognizes the dispatch of an electronic record and the time of receipt of an electronic record . The legal regime envisaging the electronic presentation of records, such as the presentation of a bill of entry, has been imparted precision as a result of the enabling framework of the Information Technology Act under which these records are maintained. The presentation of the bill of entry under Section 46 is made electronically and is captured with time stamps in terms of the requirements of the Information Technology Act read with Rule 5(1) of the Information Technology (Electronic Service Delivery) Rules 2011. 58. With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification No. 5/2019, which is akin to the exercise of delegated legislative power, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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