Page 234 - ELT_3rd_1st May 2020_Vol 372_Part

456 EXCISE LAW TIMES [ Vol. 372

Agent had, inadvertently, omitted to declare 3.75 MTs of ‘Kolophonium C’ and
subsequently, vide their letter dated 4th May, 2012, sought amendment of the bill
of entry as provided for in Section 149 of Customs Act, 1962. It would appear
that, based on examination of the cargo, the declared goods, as well as the unde-
clared goods, were held liable to confiscation under Sections 111(i) and 111(m) of
the Customs Act, 1962 with option for redemption on payment of fine of
` 3,50,000/- besides penalty of ` 1,50,000/- being imposed under Section 112 of
Customs Act, 1962. Furthermore, the entire consignment was denied the benefit
of duty exemption under the ‘Advance Authorization Scheme’. In Order-in-
Appeal No. 417(Gr.VII-D)/2013/JNCH/EXP-104 dated 28th May 2013, Commis-
sioner of Customs (Appeals), Nhava Sheva, Mumbai-II upheld the order of the
original authority. Aggrieved by this, the appellant is before us.
2. It is seen that, instead of considering the request for amendment to
include the goods covered by the second invoice for the consignment, proceed-
ings were initiated and, that too, in the absence of show cause notice.
3. Learned Counsel for the appellant submits that the duty liability has
already been discharged without any further claim for the privileges of the
scheme and that, in the circumstances of proper and timely reporting, the confis-
cation and penalty should not have been burdened on them.
4. We have heard Learned Authorised Representative who submits
that the claim of the appellant does not merit acceptance as the presence of two
different goods was known at the time of import.
5. We note that the application for amendment of bill of entry has not
been acted upon and is, as yet, pending before the competent authority. In those
circumstances, there is no justification for initiation of proceedings against the
importer.
6. From the records, we are unable to ascertain if any further investiga-
tion to establish intent to misdeclaration the goods was evidenced. Had the in-
completeness of the declaration been complemented by a similar misdeclaration
in the bill of lading, there could have been some support to a premise of commis-
sion of an offence. We do not find any evidence to that effect. In the circumstance
of a mis-match between the bill of lading and the actual clearance of the goods,
proceedings under Section 116 of Customs Act, 1962 would have arisen. It is,
therefore, obvious, that any intended misdeclaration of quantity would have suc-
ceeded only with a corresponding misdeclaration in the bill of lading. Such is not
on record herein.
7. In the circumstances, it would appear that the misdeclaration of the
goods covered by only one of the invoices is inadvertent and not deliberate. It
would have been appropriate for the competent authority to dispose off the ap-
plication for amendment of the bill of entry. With the clearance of goods after
exclusion from the scheme, the duty charged upon the goods is no longer in dis-
pute. Amendment is implicit on such clearance and only the bona fides of the ap-
plication for amendment could have been doubted. Our findings hold otherwise.
8. In these circumstances, we find no reason to sustain the confiscation
of goods and imposition of penalty. Accordingly, the impugned order is modi-
fied to the extent of setting these aside and relieving the importer of the burden
of redemption fine and penalty under Customs Act, 1962.
(Pronounced in open Court)
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