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TMI Blog2025 (1) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... bond module and ICES by the department, cannot be made a reason to deny the adherence to a statutory requirement by an importer, more so when the statute does not require the importer to enter such details in the ICES prior to filing a bill of entry. It is at best a curable defect and not a substantive one. The question arises whether the Commissioner (Appeals) was right in allowing the rate of duty as on 26/09/2018 to be applied after a period of 6 7 months, when the goods were actually cleared, which is against section 15 of the Customs Act 1962. It is true that in this case a Bill of Entry number was not generated by the Indian Customs Electronic Data Interchange System (ICES) for the said declaration and the self-assessed copy of the Bill of Entry was not electronically transmitted to the authorised person. The instruction pertains to payment of charges for late presentation of Bill of Entry, which has a discretionary element, unlike the relevant date for the rate of duty to be effective, which is fixed by the Customs statute and does not leave room for discretion. However, the issue that delays in filing of Bill of Entry happen due to system related faults is acknowledged by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent took up the matter with the Customs Broker. They were informed that due to non-updation of bond details in the ICES (the Indian Customs EDI System ), the Ex-bond Bills of Entry filed on 26.8.2018 were not accepted and showed a negative acknowledgment. In the meanwhile, vide Notification No. 67/2018 dated 26.9.2018, the duty payable structure on the split air-conditioners were enhanced from 10% of BCD to 20% BCD with effect from 27.10.2018. The respondent was required to pay duty on the imported split air conditioners under the above structure. The extra duty under the new notification worked out to Rs.42,89,795/-. On a bonafide belief, based on the communication of the Assistant Commissioner (Bonds) dated 26.11.2018, that the excess duty would be refunded by the refund section, the respondent discharged the excess duty liability of Rs.42,89,795/-. Hence refund claims were filed for refund of the excess duty amount and the same came to be rejected by the lower authority on the ground that the ex-bond bills of entry were filed only after Notification No. 67/2018 dated 26.9.2018 came into effect. Against such rejection, respondent filed appeal before the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Commissioner Appeals. 3) On verification with the department, it was ascertained that the error was on account of the fact that bond details were not updated by the bond section. 4) As per the Warehousing Regulations 2016, 11(4) and Board Circular 25/2016 08/06/2016, -para 2 and 3, it is the responsibility of the warehouse licensee for mandatory maintenance of records in digital form and not that of the importer. 5) Revenue cannot take a ground which is contrary to the circular. 6) The Ld. Counsel relied on the following judgments; a) Madras High Court decision M/s Lakshmi Dall Mill reported in 2018 TIOL 185 HE MAD EUS b) Madras High Court decision in the case of M/s Rangsuganth Manufacturing Pvt Ltd Vs Asst Commissioner of Customs Chennai reported in 2022 (2) TMI 212 MAD HC CUS c) Ratan Wire Melting reported in 2005 (3) SCC 57 d) Commissioner of Customs New Delhi Vs MD Overseas Ltd reported in 2021 (8) TMI-704 CESTAT NEW DELHI The Ld. Counsel prayed that the appeal may be dismissed. 4. Having heard the rival contentions, perused the record and after going through the relevant case law relied upon by the parties, I find that this is a case where the respondent has allegedly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o baggage and goods imported by post. Hence as per section 15(1)(b), which is applicable to this case, the rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section. 8. The presentation of an electronic bill of entry is covered by the Bill of Entry (Electronic Integrated Declaration and paperless) Regulation 2018. Regulation 4(2) provides that the Bill of Entry shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration, a Bill of Entry number is generated by the Indian Customs Electronic Data Interchange System (ICES) for the said declaration and the self- assessed copy of the Bill of Entry may be electronically transmitted to the authorised person. 9. It is revenue s case that there was a 6 7 months delay in filing the bill of entry after the record of error alluded to by the appellant, the claim has to be tested on the anvil of fact and law. While the burden of proof in this case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of warehousing etc. will be uploaded in the module by the Bonds section on the one hand and also by the warehouse licensee on the other. The updation of the warehousing date needs to be done manually separately in the ICES by the Bonds Superintendents on information/request from the importer/CHA. Until ICES and the Bonded Module are linked, this is required to be done in this way only. It is not practice or feasible for the Bond section to update the warehousing date in the ICES as a matter of daily routine. The Trading public knows this procedure very well which has been in vogue for a long time. 12. The appellant has drawn attention to Warehouse (Custody and Handling of Goods) Regulations, 2016 provision 11(4) along with para 2 and 3 of Board s Circular No 25/2016-Customs issued from F. No. 484 / 03 / 2015 LC (Pt 1), dated: 08/06/2016. It is seen that the Regulation requires that every licensee shall maintain records in a warehouse. Section 11(4) states that a licensee shall file with the bond officer a monthly return of the receipt, storage, operations and removal of the goods in the warehouse, within ten days after the close of the month to which such return relates. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring the Department to re-assess the three Bills of Entry with respect to the rate of Basic Customs Duty applicable on 05.07.2019. (emphasis added) 14. It is also noted that the board vide its Instruction No.12/2017-Customs dated 31.08.2017, on the subject Clarification on difficulties related to recent amendments in Customs Act, 1962 - reg. , held as under; 3. Board has examined the issue and accordingly following clarification is given. Board is of the view that importer should not be penalised for delay happening due to any system related fault. In this regard section 46 of the Customs Act 1962 provides that payment of charges for late presentation of the Bill of Entry is subject to existence of sufficient cause to the satisfaction of proper officer. (emphasis added) The instruction pertains to payment of charges for late presentation of Bill of Entry, which has a discretionary element, unlike the relevant date for the rate of duty to be effective, which is fixed by the Customs statute and does not leave room for discretion. However, the issue that delays in filing of Bill of Entry happen due to system related faults is acknowledged by the instruction and has legal implication ..... X X X X Extracts X X X X X X X X Extracts X X X X
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