By TIOL News Service

MUMBAI, AUG 06, 2013: THE appellant filed an Advance Bill of Entry for import of a new vehicle from Dubai. The appellant requested the Commissioner of Customs (Import) for adjudication of the said Bill of Entry and also submitted that as the appellant is not able to produce Type Approval Certificate which is required as per ITC / Policy Conditions for import of new car the assessment be made as per Customs Manual 2010-11 and as per Circular No. 22/97-Cus dated 04.07.1997.

The matter was considered by the Commissioner who passed the following order:-

"Please refer to your letters dt.26.03.2013 on the above subject.

In this regard it is informed that as per Licensing Notes 2(d) of Chapter 87 the import of New Vehicle is allowed through Mumbai Port. The goods are required to be examined after their arrival. In terms of Ministry's letter F.No.100/18/55-EC dated 13.05.55, after examination of the goods, a show-cause notice is to be issued before the adjudication proceedings. No adjudication can be done on advance bill of entry, only duty can be paid on it.

In view of the above, your request for adjudication of the case in advance, before arrival of the goods, cannot be acceded to".

Aggrieved by this order, the appellant is before the CESTAT.

It is submitted that the conclusion of the Commissioner that he has no jurisdiction to adjudicate Advance Bill of Entry without examination of the goods, is not proper, as there is no provisions under the Customs Act, 1962 which bars adjudication at the stage of Advance Bill of Entry. It is further submitted that the adjudicating authority has erred in relying upon the letter dated 13.05.1955 which has no application to the facts of the case inasmuch as the provisions regarding Advance Bill of Entry were introduced in the year 1996 in the Customs Act, 1962. Furthermore, the Board Circular No. 22/97-Cus dated 04.07.1997 does not put any embargo on adjudication of issue of violation of ITC/Policy Conditions and there is no such restriction even under the Customs Manual issued by the Board; that in adjudicating a case, where the importer on his own informs about his inability to comply with any ITC/Policy Condition, it is not necessary that the violation, if any, is necessarily to be reported by only Customs Officer, for initiating adjudication proceedings; that it is settled law that fresh proceedings can always be initiated against an importer even after adjudication, if any violation or suppression comes to the notice of the department after completion of adjudication. Reliance is placed on the decision in Mohan Meakin Ltd., 2002-TIOL-448-SC-CUS . It is also submitted that the procedure prescribed for Advance Bill of Entry permits reassessment upon arrival of vessel carrying the goods and filling of IGM and which also supports the contention that the case can be re-adjudicated if the need so arises, after adjudication at the Advance Bill of Entry stage.

The Revenue representative submitted that the procedure governing the advance noting of Bill of Entry is given as per Circular 22/97-Cus dtd. 04.07.1997 and this Circular discusses about the processing of Bill of Entry for payment of duty and does not include adjudication of the case; that procedure of assessment is different from adjudication; that the adjudication proceedings are initiated only upon reporting of violation of any rule, regulation, or any other provision of Customs Act, 1962 by the assessing officer/examining officer whereas in the present case the importer himself is coming forward informing the violation; that adjudication of any import has to look into all the aspects of imported goods which can be complete only after physical exa mination of the goods and thorough scrutiny of all the relevant documents; that the request of the appellant is premature and also leads to a situation of taking the law into his own hands and, therefore, there is no infirmity in the impugned order and the same is required to be upheld.

The Bench observed –

"8. In this case the learned Commissioner relied on the Ministry's letter F.No. 100/18/55-EC dated 13.05.55 which was issued when Sea Custom Act was in force. As the Customs Act was introduced in the year 1962 and all the provisions of the Customs Act are applicable since then. Therefore, the letter issued by the Ministry dated 13.05.1955 cannot be relied upon in the matter. Only the provisions of Customs Act, 1962 are applicable to the facts of the case. Section 46(3) of the Customs Act, 1962 permits filing Bill of Entry before even filing of IGM and the Board's Circular 22/97 dated 07.07.1997 provides the procedure for dealing with the situation of Advance Bill of Entry. Para 3 of the said Circular is reproduced here-in-under:-

"The importers desirous of availing the above facility should submit application along with the advance B/E (five copies) to the Import Department. The 5th copy (additional copy) will be called Advance Noting copy. Alongwith Advance Bill of Entry the importer/ CHA will produce copy of Bill of lading/ AWB and invoice issued by the supplier and other documents required for assessment. They will affix following declaration with the original B/ E.

"We wish to clear the goods on arrival of the vessel. We request that our Bill of Entry be processed without waiting for the manifest. The vessel is due on _________. We shall formally present the Bill of Entry for noting as soon as the Import Manifest is filed. In case the Steamer Agent fails to deliver the IGM to the Import Department within 30 days from the date of advance noting of Bill of Entry, or the goods in question are not found to be listed in the import manifest we shall surrender advance noted bill of entry to the Import Department for cancellation and shall present fresh Bill of Entry u/ s 46 of the Customs Act, 1962 after the delivery of Import Manifest in the Custom House".

9. On the basis of para 3 of the said Circular and the undertaking given by the importer, Advance Bill of Entry can be processed by the adjudicating authority. Admittedly, in this case the appellant has filed Advance Bill of Entry and undertook to comply with the undertaking as per para 3 of the said Circular here-in-above. Moreover, the Customs Manual 2010-11 also provides for faster clearance of the goods to allow filing of bill of entry prior to arrival of goods as per Section 46 of the Customs Act, 1962.

10. In these circumstances as held by the Hon'ble Supreme Court in the case of Mohan Meakin Ltd (supra) I am of the view that the learned Commissioner can be assessed the Advance Bill of Entry as prayed by the appellant in accordance with law….”

Holding that the Commissioner of Customs (Imports) is empowered to adjudicate the Advance Bill of Entry, the appeal was disposed of.

(See 2013-TIOL-1183-CESTAT-MUM)