9911796707
TMI Blog2024 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... umption or deposited in 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. In the instant case, the document was cleared for home consumption on 11.06.2018. The goods were infact unloaded from the ship by the stevedoring agent, therefore, it is clear that no document was available prior to 11.06.2018. It can be seen that the clearance of goods can only be said to have happened on 21.06.2018 when the bills of entry was finally assessed. From that perspective the documents presented by the appellant namely the police report dated 15.06.2018 was indeed available prior to the clearance of the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the refund claim is time-barred as 1 year has passed after the date of Final Assessment. On the issue of Re-assessment, the department denied the amendment on the grounds that as per Section 149, amendment is not allowable after the goods have been cleared for home consumption and the exception to the section in the shape of existence of the documentary evidence is also not applicable as the first documentary evidence was presented after the goods were cleared for home consumption. 2. Learned counsel for the appellant pointed out that reassessment was sought by them under Section 149 of the Customs Act. He argued that the conditions mentioned under Section 149 are satisfied in the present case and therefore, amendment in the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne provisionally on 08.06.2018. 3. Learned Authorized Representative relies on the impugned order. 4. The facts of the case are as follows: The appellant filed bill of entry no. 6711677 dated 08.06.2018 for import of 47200 MT. The bill of entry was assessed provisionally on 08.06.2018 and the document was cleared for home consumption on 11.06.2018. Thereafter the goods were unloaded on barges for transfer from vessel M.V. Ocean Destiny which arrived in Kandla on 09.06.2018. The entire cargo was discharged by M/s Rishi Shipping the stevedoring contractor through barges. The discharge operation commenced on 11.06.2018 and was completed on 24.06.2018. The total quantity discharged were 47200 MT as per the draft survey report. The enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, there is no documentary evidence which was in existence at the time of the impugned goods were cleared 1.e 11.06.2018 and also the goods were reported destroyed on 13.06.2018 which was after the clearance of Home Consumption . Hence, section 149 of the Custom Act, 1962 is not applicable in the Instant case. The said order of the Assistant Commissioner has been upheld by the Commissioner (Appeals) on the ground that the goods were ordered to be cleared on 11.06.2018 and the goods were destroyed on 13.06.2018 and the police report was filed on 15.06.2018. The amendment has been sought on the strength of the police report dated 15.06.2018 which was not available before 11.06.2018 when the goods were cleared for home consumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n finally assessed and out of charge order is given because it is this act of customs which puts the seal of finality and the goods thereafter go out of Customs Control - free to get mixed with the stream of commerce (or put to personal use) i.e. for home consumption. The said decision of the Tribunal has been approved by the Hon ble Apex Court as reported in 1996 (86) ELT A78 (SC). It can be seen from the above that the clearance of goods can only be said to have happened on 21.06.2018 when the bills of entry was finally assessed. From that perspective the documents presented by the appellant namely the police report dated 15.06.2018 was indeed available prior to the clearance of the goods and was infact submitted prior to clearance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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