TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 227
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....of origin issued retrospectively by virtue of the notification no. 187/2009-NT dated 31.12.2009 can supersede the procedure/requirement as laid down in Section 149 of Customs Act, 1962 pertaining to amendment in the bills of entry?" At the relevant time, the assessee had imported various consignments of goods mainly LCD panels from Republic of Korea. The goods were imported upon clearance of fifty eight number of 'Bills of Entry' (hereinafter referred to as subject 'Bills of Entry') in accordance with the provisions of the Act. The subject 'Bills of Entry' were assessed at tariff rate of duty accepting the claim with regard to classification, notification and duty structure etc. The assessee then filed an appeal before the Commissioner of Customs (Appeals) Meerut Zone, Noida claiming refund of duty paid on the strength of 'Certificate of Origin' issued retrospectively by the designated authority of the Republic of Korea. The aforesaid appeal was dismissed as not maintainable, it having been filed prematurely before amendment of the subject 'Bills of Entry'. The assessee then approached the Additional Commissioner, Customs, I.C.D., Dadri for....
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....as not in existence when those goods were so cleared. According to him, there is no dispute to the fact that the subject 'Bills of Entry' had been sought to be amended on the strength of the 'Certificate of Origin' issued subsequently i.e. after the goods had been cleared for home consumption at the instance of the assessee. In this regard, during the course of hearing a chart has been supplied by learned counsel for the revenue containing details of serial number of the subject 'Bills of Entry'; date on which the goods were presented for examination; the date on which the goods were cleared for home consumption and; the serial number and date of the issue of the 'Certificate of Origin' against which the assessee had claimed refund of duty. The contents of the said chart are extracted below:- Sl.No . B/E No. Date C.O.O.No. Date Date of presentation of goods & Examination 1. 3536273 18.05.2011 211200236 23.02.2012 18.05.2011 2. 5554848 23.12.2011 211200219 14.02.2012 31.12.2011 3 5616726 30.12.2011 211200217 14.02.2012 02.01.2012 4. 5670431 06.01.2012 211200218 14.02.2012 07.01.2012 5. 5676597 07.01.2012 21....
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.... 13.08.2012 211201099 25.07.2012 16.08.2012 45. 2035187 03.04.2012 211100053 10.03.2012 16.08.2012 46. 7034983 07.06.2012 211201323 13.09.2012 07.06.2012 47. 7327253 07.07.2012 211201332 13.09.2012 07.07.2012 48. 7327338 07.07.2012 211201333 13.09.2012 07.07.2012 49. 6983251 31.05.2012 211201321 13.09.2012 01.06.2012 50. 7036685 07.06.2012 211201322 13.09.2012 07.06.2012 51. 7463138 23.07.2012 211201022 02.07.2012 25.07.2012 52. 7465014 23.07.2012 211201334 13.09.2012 25.07.2012 53. 7620282 08.08.2012 211201336 13.09.2012 09.08.2012 54. 7648647 13.08.2012 211201337 13.09.2012 18.08.2012 55. 6581310 18.04.2012 211200515 02.04.2012 19.04.2012 56. 6838986 16.05.2012 301200530 11.05.2012 19.04.2012 57. 7462942 23.07.2012 211201023 02.07.2012 25.07.2012 58. 7428635 18.07.2012 211200991 28.06.2012 20.07.2012 Referring to the aforesaid chart, learned counsel for the revenue submits, while the date of presentation of goods is mentioned in the 6th column of the aforesaid chart, the date of clearance of the goods for home consumption is mentioned in the 3rd column of that chart whi....
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.... assessee here. Then he relies on Section 25 of the Act to submit, though the goods in question were exigible to customs duty, at the same time the Central Government was competent to grant exemption from payment of customs duty on such goods, generally, either absolutely or subject to conditions that may be fulfilled either before or after clearance of imported goods for home consumption. Further, such conditions could be specified by way of notification. For ready reference provisions of Section 25(1) of the Act are quoted below:- "Section 25:- Power to grant exemption from duty- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon." It has then been stated that the Central Government had in exercise of powers vested under Section 25(1) of the Act issued general exemption notification no. 151 of 2009 dated 31.12.2009. A bare perusal of the not....
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.... designated by the Government of the exporting State party and notified to the other State party as specified in the Annexure-IV to the rules and in accordance with the detailed operational certification procedures for implementation of these rules as specified in Annexure-III to the rules and in the format specified in the Annexure-V to the rules." (emphasis supplied) Annexure-III to the Tariff Rules provides for the "Procedure regarding claim of preferential tariff treatment and 'Certificate of Origin' goods under the agreement". Para 3(4) of Annexure-III to the Tariff Rules reads as under:- "3. Issuance of Certificate of Origin:- (1).... (a)...... (b)...... (2)..... (3)..... (4) The Certificate of Origin shall be issued by the relevant Issuing Authorities at the time of exportation, or within seven working days from the date of shipment whenever the goods to be exported can be considered originating in that State party: Provided that, under exceptional cases, where the Certificate of Origin has not been issued at the time of exportation or within seven working days from the date of shipment due to involuntary errors or omissions or due to any other valid....
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....abled to grant exemption from custom duty to any goods generally, either absolutely or subject to condition as may be specified in the notification. By very nature, Section 25, therefore, becomes an exception to Section 12 of the Act that creates levy of custom duty on goods that may be imported to or exported from India. We may note, in Topman Exports v. CIT, (2012) 3 SCC 593 the Supreme Court while dealing with the deduction claimed under section 80 HHC read with Section 28 of the Act observed as below: "39. It is a well-settled principle of statutory interpretation of a taxing statute that a subject will be liable to tax and will be entitled to exemption from tax according to the strict language of the taxing statute and if as per the words used in Explanation (baa) to Section 80-HHC read with the words used in clauses (iii-d) and (iii-e) of Section 28, the assessee was entitled to a deduction under Section 80-HHC on export profits, the benefit of such deduction cannot be denied to the assessee". Then, recently, in Godrej & Boyce Mfg. Co. Ltd. v. CIT, (2017) 7 SCC 421 while dealing with issue of expenditure claimed to earn exempt income the Supreme Court applied the rule of ....
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....s to be a provision to give effect the charge of duty created under Section 12 of the Act. Section 25 of the Act is an exception to the aforesaid scheme. It would be wholly illogical to apply Section 149 of the Act with all its rigor to goods that are exempt from payment of customs duty under Section 25 of the Act. That exemption from custom duty has been made subject only to a notification issued by the Central Government that may grant exemption either absolutely or subject to condition/s so notified. Here it is very significant to note, while granting exemption the Central Government has the power to exempt generally any goods from payment of custom duty subject to such condition/s as may be notified. However, in view of clear language of Section 25 of the Act such condition/s may be fulfilled either before or after clearance of the goods. That being the provision of the Act itself, the consequential delegated legislation namely exemption notification and the Tariff Rules have to be read and understood consistent with this unambiguous legislative intent. Thus, the Tariff Rules do not conflict with Section 149 of the Act. While Section 149 is a machinery provision in aid of dut....
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....e Tariff Rules. Thus, the exemption from duty could be claimed by the assessee upon fulfillment of the condition that the goods had been imported in accordance with the Tariff Rules. As to the Tariff Rules, it is seen, under Rule 15 of the Tariff Rules a 'Certificate of Origin' was required to have been issued by the designated authority in the Republic of Korea in accordance with the detailed operational certificate procedure for implementation of the Tariff Rules as specified in Annexure-III to the Rule. Paragraph 3 (4) of Annexure-III to the aforesaid Tariff Rules (as has been extracted above), clearly provided that in the first instance the condition of 'Certificate of Origin' being in existence at the time goods were cleared for home consumption may be fulfilled either at the time of exportation of goods from Korea or even seven working days therefrom provided that in exceptional cases i.e. second instance, where such 'Certificate of Origin' could not be issued after seven days from the date of shipment either due to (i) involuntary errors or (ii) omissions or (iii) any other valid reasons, the said requirement may be relaxed subject to a further (two)....
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....alongwith Tariff Rules had been complied with by the assessee within time prescribed. We find in the first place, Section 25 of the Act itself contemplated that the conditions that may be imposed by the Central Government while issuing an exemption notification may be fulfilled either before or after clearance of the goods. That being the intent of the parent legislation, there could be no denial to the claim made by the assessee that as a rule it was entitled to fulfill the condition for grant of exemption even after the goods had been cleared for home consumption. Thus even in absence of Annexure-III to the Tariff Rules, it may have been open to the assessee to claim exemption from payment of custom duty. However, that apart in the instant case, by virtue of Rule 15 of the Tariff Rules, the Central Government has further acted in concert and in conformity with the spirit of Section 25 of the Act in so far as the Tariff Rules provide for detailed operational certification procedure for implementation of the Rules as mentioned in Annexure-III thereto. If, there was any doubt as to the manner of issuance of 'Certificate of Origin' and its effect, the same has been made cle....