By TIOL News Service

MUMBAI, MAR 29, 2016: THE respondent had filed two bills of entry in April/June 2008 and claimed benefit of notification no. 56/2008-Cus dated 29/04/2008 for import of ferroniobium. Benefit of notification 21/2002-Cus was also claimed.

The assessing officer did not extend the benefit of notification as due to some fault the EDI system was not upgraded. By a letter dated 08.10.2008, the respondent had also requested for amendment in EDI bill of entry u/s 149 and/or 154 of the Customs Act, 1962, to correct some errors. However, no action was taken by the department.

Later, the claim filed for refund of the amount of Customs Duty paid in excess by the respondent was rejected by the adjudicating authority by placing reliance of the judgment of Apex Court in the case of Priya Blue Industries Ltd. - 2004-TIOL-78-SC-CUS & Flock (India) Pvt. Ltd. – 2002-TIOL-208-SC-CX.

The Commissioner (A) set aside the impugned order by extending the benefit of notifications no. 21/2002-Cus and 56/2008-Cus.

Revenue is in appeal. The primary grievance is that since the respondent had not challenged the assessment of the said bills of entry, the ratio of the cited apex court decisions will apply.

The respondent submitted that the application filed by the appellant for correction in the bills of entry was not considered and there is no doubt that the respondent is eligible for benefit of both the notifications no. 21/2002-Cus and 56/2008-Cus. Reliance is placed inter alia on the decision in Cipla Ltd. - 2015-TIOL-201-CESTAT-MUM in support.

The Bench observed –

+ There is no dispute as to the facts that respondent is eligible for the benefit of notification 21/2002 & 56/2008. The ground of appeal has not controverted this factual position. It is also undisputed that the EDI system which is operational into the customs was not updated to extend benefit of notification 56/2008 to the product imported.

+ We find the respondent has sought amendment to bills of entry as per the provisions of section 149 and/or 154 of the Customs Act, 1962 which was not responded to. We find that the eligible benefit of the notification could not be extended to assessee due to an error and non-updation of the program in the EDI system, cannot be held against an assessee, only on the ground that they had not challenged the assessment for the bills of entry. In our view this would deny legitimate benefit available to an assessee and more so when the assessee, in this case had sought the amendment of bills entry as per the provisions of Customs Act, 1962.

Holding that the impugned order is correct and legal and does not suffer from any infirmity, the Revenue appeal was rejected.

(See 2016-TIOL-735-CESTAT-MUM)