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TMI Blog2024 (3) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... irst available opportunity and therefore there is no error in allowing the application made by the appellant u/s 149 of the Act seeking amendment of the bill of entries. The amendment sought by the appellant in the facts of the present case is justified and therefore the impugned order is liable to be set aside. The Department is directed to amend the Bill of Entries by exercising power u/s 149 of the Customs Act and pass appropriate orders on the appellant depositing the requisite fee under Notification No. 36/2017-Customs (NT). The appeal is, accordingly allowed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) Shri Bipin Garg Ms. J. Kainaat , Advocates for the Appellant Shri Mahesh Bhardwaj , Authorized Representative for the Respondent ORDER Binu Tamta The present appeal has been filed challenging the Order-in-Appeal No. 119(SM)CUS/JPR/2022 dated 29.07.2022 whereby the prayer made by the appellant under Section 149 of the Customs Act, 1962 (the Act) for amendment of the Bill of Entry was rejected. 2. The appellant herein are engaged in the manufacture of Tableware, Crockery etc. and are registered with the GST authorities. One of the raw material is Calcium Phosphate which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the import in question and even thereafter under Chapter 28 and there was no mala fide intention on their part. 4. The learned Authorized Representative for the Revenue referring to Para 7 of Chapter 3 of Customs Manual, 2018 pointed out that it is only in case of bonafide mistakes that rectification by way of amendment to the bill of entry can be allowed and in the present case, Shri Dinesh Chandra Agarwal, Director of the appellant company accepted that they have mis-declared the HSN code due to clerical error, which ultimately resulted in evasion of customs duty and therefore no interference is called for. 5. Having heard both sides and perused the records of the case, the short question which arises in the present appeal is whether the request made by the appellant for amendment of the Bill of Entries can be allowed under the provisions of section 149 of the Customs Act, 1962. 6. It may be relevant to extract the provisions of Section 149 of the Customs Act, 1962 and Para-7 of Chapter-3 Procedure for Clearance of Imported and Exported Goods of Customs Manual, 2018 which reads as under: 149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods. Further distinguishing the applicability of the decision of the Apex Court in ITC Ltd. Vs Commissioner of Central Excise, Kolkata, 2019 (368) ELT 216 (SC) on the issue of filing an appeal, the High Court observed that: 24. In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought reassessment upon amendment of the Bills of Entry by correcting the customs tariff head of the goods which would then facilitate the petitioner to seek a claim for refund. This distinction though subtle is crucial to distinguish the case of the petitioner from the one which was adjudicated by the Supreme Court and by this Court. 25. Grievance of the petitioner is not on the merit of the self-assessment as the petitioner is aggrieved by the failure on the part of the respondents to carry out amendment in the Bills of Entry by replacing the incorrect CTH by the correct one namely by replacing CTH 8517 69 90 with 8517 69 30 which was declared inadvertently by the petitioner at the time of fling the Bills of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould avail of the provisions of Section 149 of the Customs Act, 1962 and we, therefore, direct him to move an application before the proper officer seeking amendment of the Bill of Entry in terms of Section 149. 10. In the present case the appellant had stated that all through out they have been declaring the classification of the goods under CTH 28 and this was the solitary instance when their staff had classified the goods under CTH 25 on the advice of the supplier that there was change in the composition of the product and would therefore merit classification under Tariff Heading 25 of the Custom Tariff Act. I also take note of the fact that soon after detection on 26.11.2020, the appellant paid the differential duty along with interest and penalty on 4.12.2020 without any protest. From the nature of amendment sought by the appellant in Bills of Entry, the same is liable to be allowed since only a paper declaration was sought for amending the Customs Tariff Heading from 25 to 28. The observations made by the Delhi High Court in CC Vs. M.D. Overseas 2023 SCC Online Del. 6056 are relevant in the present context on the applicability of Section 149 of the Act, the same reads as : 7. ..... 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