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TMI Blog2022 (7) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14 th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons - The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously. The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal. By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide. The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excess cargo that was unloaded at Jaigad Port was in fact Goonyella C Coking Coal and not Peak Down North Coking Coal. The Respondent-Company, therefore, vide its letter dated 5th December, 2017, informed the Customs Authorities of the same and that the said 1,341 metric tons of Goonyella C Coking Coal which was to be discharged at Marmagao Port, Goa had been wrongly discharged at Jaigad Port for which the Respondent-Company had paid duty at Marmagao Customs, presuming that full quantity of import would be cleared at Marmagao Port. The Company also requested that they may be allowed to file a Bill of Entry for a differential quantity and that the said cargo may be allowed clearance. The Customs House Agent ( CHA ) and Shipping Agent were instructed for processing of filing of Bill of Entry after necessary re-amendment to the IGM. The Customs Authority after considering the request made by the Shipping Agent changed the IGM from Peak Down North Coking Coal to Goonyella C Coking Coal, but the same was kept in the name of ARCL. Therefore, a request was made vide letter dated 15th February, 2018 by the Shipping Agent for the necessary amendments in the IGM. However, despite the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the vessel carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing. It is submitted that accordingly, Bill of Entry for home consumption was filed within a time at Marmagao. However, at the time of clearance, a quantity of 1,341 metric tons was found short as also confirmed under the Draught Survey Report and that, on enquiry, it was found that the subject goods were wrongly manifested as Peak Down North Coking Coal instead of Goonyella C Coking Coal in the name of ARCL and only on 14th March, 2018, an amended IGM and the Bill of Lading in the name of the Respondent-Company, describing the goods as Goonyella C Coking Coal were issued by the Shipping Line after obtaining permission from the Customs. The Bill of Entry was filed by the Importer immediately on 14th March, 2018 for clearance at Jaigad Port, that therefore no late fee was payable. 6. After considering the submissions, the Commissioner (Appeals) while allowing the Appeal of the Respondent-Company set aside the demand of late fees made by the Assistant Commissioner Customs, inter alia observing that the Respondent Company s assessment for full quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-cleared at Jaigad Port. On detailed enquiry, the Appellant came to know that during the course of discharge of Cargo, the Stevedores at Jaigad Port did not follow the approved discharge sequence plan prepared by the Chief Officer of the vessel and over landed 1,341 MT of Goonyella C Coking Coal at Jaigad Port as per the report of the Master of Vessel. The Vessel reached Marmagao Port on 14-04-2017 and discharged the balance quantity of 97,109 MT of Goonyella C Coking Coal as against 98,450 MT which is evident as per Statement of Facts dated 25-04-2017 of the Vessel at Marmagao Port duly signed by Port Authorities, Agent and Master of the Vessel. The Appellant on learning that short landed goods are at Jaigad Port, instructed their CHA and the Shipping agent for processing of filing of Bill of Entry after necessary amendment in the IGM as the cargo was in the name of ARCL at Jaigad Port and the details therein of material imported was shown as Peak downs North Coking Coal in B/L No.5. The Respondent considering the request made by the Shipping Agent changed the IGM from Peak Downs North Coking Coal to Goonyella C Coking Coal , however the same still remained in the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Entry for 1,341 MT on 14-03-2018 itself. Here a question arises whether the Bill of Entry filed for the short landed quantity 1,341 MT should be treated as a fresh one when the same quantity had already been assessed under the Bill of Entry no.93758545 dated 20-04-2017. I am of the considered view that the Bill of Entry filed on 14-03-2018 cannot be treated as a fresh Bill of Entry for invoking the provision of Section 46(3) of the Customs Act, 1962 in the present situation when the said quantity was already covered in the earlier Bill of Entry dated 20-04-2017 assessed earlier. The Bill of Entry filed on 14-03-2018 was nothing but requirement of the System for clearance of the short landed goods, which was required to be cleared at Marmagao port but in the present scenario was cleared from Jaigad Port. 6.4.2 Even otherwise as the Respondent finally approved all the amendments in the IGM on 14-03-2018 and the Appellant filed the Bill of Entry on that very day, establishes the bonafide of the Appellant in ensuring that no untoward delay is caused at their end to clear 1,341 MT of goods short landed at Marmugao Port. Keeping in mind the entire facts of the case, I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submits that even otherwise, since the Tribunal has merely relied on the order of the Appellate Authority, it is a non-speaking order and ought to be set aside as being without application of mind. He submits that this Court, therefore, admit the Appeal on the following substantial questions of law as proposed in the Appeal: a. Whether the Hon ble CESTAT, Mumbai, has erred in not taking cognizance of relevant provisions of Section 46 of the Customs Act, 1962 read with the Board s Circular No.12/2007-Cus dated 31.03.2017 wherein it has been clearly stipulated that the late fees charges will be applicable on the Importer in case of delay in filing of Bill of Entry for import of goods except in the case of inability to file Bill of Entry due to system related faults? b. Whether the Hon ble CESTAT has erred in upholding the Order in-Appeal and thereby wrongly presuming that the delay/inability of the Importer/Agent in not amending the concerned Bill of Lading/IGM in time are a system related fault beyond their control. c. Whether the Hon ble CESTAT, Mumbai has erred in upholding the Order in-Appeal that the Bill of Entry filed for the excess quantity at Jaigad port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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 consumption or warehousing in such form and manner as may be prescribed. PROVIDED that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically on the customs automated system, allow an entry to be presented in any other manner: PROVIDED FURTHER that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer is satisfied that there was no sufficient cause for such delay, the Importer shall pay such charges for late presentation of the Bill of Entry as may be prescribed. 14. In the present case, we observe that the Respondent-Company had filed the Bill of Entry No.9375854 for the entire quantity on 20th April, 2017 within the prescribed time limit and as such, there was no objection to the same. It had also paid the entire duty for 98450 metric tons of Goonyella C Coking Coal, even though, 1,341 metric tons had not landed in Marmagao but had landed in Jaigad and as soon as the amendments to the IGM were approved by the Appellant on 14 th March, 2018, again the Respondent-Company filed the Bill of Entry on the very same day in respect of 1,341 metric tons. The Commissioner of Customs in its order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and we agree with the same. The second proviso clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company. The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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