Cus - Respondents imported two paintings but failed to mention both in B/E - after order of first check was given but before examination was done, importer sought amendment in B/E - whether s. 149 covers such mistakes – Difference of Opinion - Matter referred to TM: CESTAT
By TIOL News Service
NEW DELHI, OCT 25, 2013: THIS is a Revenue appeal.
The facts of the case are - the respondents imported a consignment of two paintings valued at Rs.12,39,852/- and filed a Bill of entry dated 12.8.2006. As said bill of entry mentioned only one painting titled 'Bindu' on the value of Euro 20,000/-, they subsequently filed a letter on 17/08/2006 requesting for amendment in the Bill of entry and praying for inclusion of another painting titled 'Rajasthan'. The appellants submitted that inasmuch as both the paintings were purchased by two different invoices dated 4.8.2006 and inasmuch as both the paintings were showing invoice value of Euro 20,000/-, mention of only one painting in the Bill of entry was due to oversight and was a mistake on their part.
The original adjudicating authority observed that amendment in the Bill of entry was asked by the importer only after the order for first check was given on the Bill of entry. As such, he confiscated the painting with an option to redeem the same and also imposed penalty upon them.
The Commissioner (Appeals) held in favour of the importer by observing -
"5. I have carefully gone through the case records as well as the submissions made by appellant during personal hearing. Section 149 of the Customs Act, 1962 provides for the amendment in documents after their presentation. To say that "the request for amendment to bill of entry cannot be entertained" would render section 149 irrelevant. This cannot he accepted at all. The appellant requested for rectification of its mistake before examination of the goods and there was nothing wrong in making such request. The order rejecting such request cannot be sustained and is therefore set aside with consequential relief, if any to the appellant. Appellant's appeal is therefore allowed."
As mentioned, Revenue is in appeal against the aforesaid order.
The Member (Judicial) after noting the facts observed -
"…We also note that first check order was passed on 18.8.06 whereas the request for amendment was made by the importer on 17.8.2006. In view of all the above factors, we hold that this is not a case of intentional mis-declaration of goods but an unintentional on the part of the person filing the Bill of Entry. Commissioner (Appeals) has rightly observed that section 149 is made for such unintentional mistakes. 'Human is to err' and if such bonafide errors are not allowed to be amended, we really fail to understand as to what would be covered by the provisions of section 149 of the Customs Act."
He held the view that the Revenue appeal should be dismissed.
However, the Member (Technical) had a differing view, as culled below. While arriving at this view, the Member (T) referred to the provisions of s. 149 of the Customs Act and the fact that it was only when appellant came to know about order of first check, it requested for amendment of Bill of Entry u/s 149 before examination could be undertaken. The Member (T) also adverted to the case laws cited by the Revenue viz. Chairman, SEBI Vs. Sriram Mutual Fund - (2006-TIOL-72-SC-SEBI), Bansal Industries - (2006-TIOL-317-HC-MAD-CUS) M/s Pine Chemical Suppliers - (2002-TIOL-855-SC-CUS) to emphasize that in case of mis-declaration of description and value of Imported goods question of mensrea is not relevant for liability to confiscation and penalty under section 111(m), 112 and 125 of the Customs Act.
In fine, the Member (T) concluded thus -
"15. Based on above declaration, I find that it clearly comes out that mis-declaration was made deliberately to cause loss to Customs. There was an attempt to get the consignment cleared making mis-declaration which two paintings were imported by declaring only one painting to customs. Despite both invoices were of dated 04.8.2006 and available before filing Bill of Entry on 12.8.2006, respondent did not choose to file both invoices with intention to escape duty liability.
16. It is also observed that if order for first check would have been done by customs, appellants would not have come forward for amendment of Bill of Entry. Request in amendment of Bill of Entry was filed on 17.8.2006. Examination was done on 18.8.2006 for assessment while first check was to bring truth of mis-declaration. Order in first check was prior to 17.8.2006.
17. It can therefore be concluded that amendment of Bill of Entry was rightly rejected by assessing authority finding deliberate mis-declaration and exercised his judicious discretion when intent to evade manifested. Attempt to declare only one painting was there. Mere fact that they have sent the amount through banking channels for payment to foreign seller prior to filing of bill of entry does not mean that the appellants has not violated law. There was no bonafide mistake since facts were within exclusive and conscious knowledge of Respondent.
18. In view above of decision, I hold that confiscation was justified and called for giving option for RF and composition of penalty. No interference to R.F adjudicated is warranted. However keeping in mind that RF is remaining untouched by my reasoning given above, penalty is reduced from Rs.2,00,000/- to Rs.1,00,000/-."
And so, in view of the difference in opinion, the matter was referred to the Third Member for a majority view.
(See 2013-TIOL-1585-CESTAT-DEL)
