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TMI Blog2022 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Self Assessment of Bill of Entry - While the importer is required to subscribe to the truth of the contents of the Bill of Entry, it refers to facts and not opinions. There cannot be any absolute true or false views. The importer may self-assess the duty under a particular tariff heading as per its view and understanding, the officer re-assessing the Bill of Entry may take hold a different view. In the subsequent chain of appeals through Commissioner (Appeals), Tribunal and Supreme Court, different views may be taken and at any point of time, the view of the higher judicial/ quasi-judicial authority prevails over the view of the lower authority. Self-assessment is subject to any reassessment by the proper officer. Self-assessment can also be appealed against to the Commissioner (Appeals). They can assess duty as per their understanding and the officers are free to reassess it as per Section 17(4). Mis-classification or incorrect assessment of duty does not amount to mis-declaration in the Bill of Entry nor does it attract any penalty. Levy of penalty u/s 112 (a) (ii) - Penalty under section 112 (a) (ii) is imposable on any person for acts or omissions which render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 30039011 as upheld by the Commissioner (Appeals) and orders for clearance of the goods for home consumption were given by the officers under Section 47 in all the Bills of Entry. 3. The present proceedings were initiated after the Final Order of this Tribunal dated 10.1.2018 was passed. A Show Cause Notice [SCN] dated 2.7.2018 was issued to the importer and to the appellant invoking extended period of limitation. A supplementary SCN dated 21.10.2019 was also issued but the proceedings in pursuance of it were dropped in the impugned order and there is no appeal against it. The SCN dated 2.7.2018 culminated in the issue of the impugned order rejecting the classification of the goods under CTH 30039011 and re-classifying them under CTH 21069099, confirming a demand of differential duty amounting to Rs. 8,42,43,922/- along with interest under Section 28AA in respect of 10 Bills of Entry filed between 3.7.2015 to 23.3.2018. 4. The Principal Commissioner further held the goods imported and cleared through the aforesaid 10 Bills of Entry valued at Rs. 17,15,88,470 were liable to confiscation under section 111(m) and 111(o). However, as the goods were already cleared and were no lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has ignored the fact that no re-assessment was done by officers in any of these Bills of Entry and all the goods were cleared for home consumption by the officers correctly following the order for the Commissioner (Appeals). 8. Therefore, the appellant has committed no error, let alone, committed an act which will attract penalties. This appeal may, therefore, be allowed and the impugned order insofar as it pertains to the penalty against the appellant be set aside. 9. Learned authorised representative reiterates the findings in the impugned order and submits that it calls for no interference. 10. We have considered the submissions on both sides and perused the records. The Principal Commissioner s finding insofar as the appellant is concerned is that it filed Bills of Entry on behalf of the importer classifying the goods contrary to the Final Order of this Tribunal. 11. In the impugned order the Principal Commissioner obfuscated the fact that the Final Order of this Tribunal was passed on an appeal by the Revenue as the Commissioner (Appeals) had decided the classification in favour of the importer. Until the Final Order was passed by this Tribunal on 10.1.2018, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry itself. Assessment of Customs duty involves classification of the goods under the CTH, their valuation as per Section 14 and Customs Valuation Rules and application of the exemption notifications. These fields, when filled in the Bill of Entry filed under section 46 by the importer (or his agent) complete the self-assessment of duty. Evidently, these are not facts but are views. While the importer is required to subscribe to the truth of the contents of the Bill of Entry, it refers to facts and not opinions. There cannot be any absolute true or false views. The importer may self-assess the duty under a particular tariff heading as per its view and understanding, the officer re-assessing the Bill of Entry may take hold a different view. In the subsequent chain of appeals through Commissioner (Appeals), Tribunal and Supreme Court, different views may be taken and at any point of time, the view of the higher judicial/ quasi-judicial authority prevails over the view of the lower authority. There could be some situations, where the reassessment of duty by the officer is necessitated not just because he is of a different view but because the facts disclosed in the Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the appellant a quasi-judicial authority or any authority in any sense of the term. Self-assessment is subject to any reassessment by the proper officer. Self-assessment can also be appealed against to the Commissioner (Appeals). They can assess duty as per their understanding and the officers are free to reassess it as per Section 17(4). Mis-classification or incorrect assessment of duty does not amount to mis-declaration in the Bill of Entry nor does it attract any penalty. 15. We understand that the Risk Management System [RMS] of the Customs Electronic Data Interchange [EDI] system selects only some Bills of Entry for assessment by the proper officer and allows clearance of other Bills of Entry based on self-assessment only. However, this system also does not change the legal position as discussed above. We understand that if Bills of Entry are cleared on the basis of self-assessment, they are subjected to post clearance audit. If so, it gives sufficient time to the officers to find if any duty has escaped assessment and issue a demand under section 28. However, there can be no penalty for wrong self-assessment by the importer. 16. The finding of the Principal Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Civil Act, unless Thus, M/s. Challenger Cargo for their aforesaid acts of omission and commission and for submitting wrong declaration in the Bills of Entry, are liabel to penalty under section 112(a)(ii) and 114AA of the Customs Act, 1962. 17. Thus, in the impugned order, the Principal Commissioner found that: a) the appellant was aware of the classification issue; b) despite being aware of the classification issue, the appellant continued to file Bills of entry classifying the goods under CTH 3003 in subsequent bills of entry mis-declaring them as Ayurvedic proprietary medicines; c) the appellant was involved in wrong submission of document for clearance of goods; d) that the appellant was aware that the goods were liable for confiscation under section 111(d) and 111(m); e) Mens rea to evade payment of duty for imposing penalty under section 112 and the liability to confiscation and abetting the acts of omission or commission rendering the goods liable to confiscation is sufficient. 18. The appellant does not dispute that there was as a classification issue but during the relevant time the issue was decided by the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher : 20. Section 111(m) does not provide for confiscation of goods if the importer or on his behalf, the Customs Broker claims any wrong classification in the Bill of Entry. It only provides for confiscation if there is mis-declaration of goods. Even if the goods are misclassified or duty is otherwise wrongly self-assessed by the importer, the goods do not become liable for confiscation. The remedy against wrong assessment is re-assessment by the officer under Section 17(4). The dispute between the Revenue and the importer was with respect to the classification. At the time the Bills of Entry were filed, the Commissioner (Appeals) order held the field according to which the appellant filed the Bills of Entry. Therefore, the Principal Commissioner has erred in holding that the goods were liable for confiscation under section 111(m) and consequently, the appellant was liable for penalty under section 112. 21. To sum up: a) Self-assessment of duty (inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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