AI Drafter 
TaxTMI 
TaxTMI 
2018 (1) TMI 227
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....Customs Act '1962? 2. Whether the certificate 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 app....
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....rted and cleared for home consumption on the basis of documentary evidence that was 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 31.12.2....
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....1 211101802 22.12.2011 19.08.2011 34. 4575616 07.09.2011 211200153 27.01.2012 12.09.2011 35. 4575517 07.09.2011 211101784 22.12.2011 12.09.2011 36. 4999862 22.10.2011 211101542 06.10.2011 24.10.2011 37. 5097071 03.11.2011 211101593 23.10.2011 04.11.2011 38. 6262590 14.03.2012 211200371 16.03.2012 15.03.2012 39. 6392419 28.03.2012 211200348 08.03.2012 30.03.2012 40. 6144194 01.03.2012 211200291 02.03.2012 02.03.2012 41. 5835167 25.01.2012 211200229 17.02.2012 30.01.2012 42. 5725420 13.01.2012 211200234 17.02.2012 13.01.2012 43. 5719397 12.01.2012 211200252 23.02.2012 13.01.2012 44. 7654183 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 ....
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....yed the clearance of goods for home consumption till it had obtained the 'Certificate of Origin' from the designated authority in the Republic of Korea. Having once obtained the clearance of goods, there did not remain an option with the assessee to obtain amendment of the subject 'Bills of Entry' or to seek refund of duty paid at the time of obtaining clearance of the goods for home consumption. Responding to the above, Sri M.P. Devnath, learned counsel for the assessee submits that the argument being advanced by learned counsel for the revenue is wholly misconceived inasmuch as Section 149 of the Act is a duty payment provision i.e. part of the machinery provision to give effect to the charging section of the Act to provide for payment of duty on any goods brought inside the territory of India for home consumption while the present case arises under exemption provisions under Section 25 of the Act. According to him admittedly, there is a bilateral treaty between the Republic of India and the Republic of Korea which provides for exemption of customs duty, amongst others on the goods imported by the assessee here. Then he relies on Section 25 of the Act to sub....
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.... trade agreement.-(1) Where under a trade agreement between the Government of India and the Government of a foreign country or territory, duty at a rate lower than that specified in the First Schedule is to be charged on articles which are the produce or manufacture of such foreign country or territory, the Central Government may, by notification in the Official Gazette, make rules for determining if any article is the produce or manufacture of such foreign country or territory and for requiring the owner to make a claim at the time of importation, supported by such evidence as may be prescribed in the said rules, for assessment at the appropriate lower rate under such Agreement." Learned counsel for the assessee has then taken us to the Tariff Rules as notified by custom notification no. 187 of 2009 dated 31.12.2009 which have also been referred to in the exemption notification no. 151 of 2009. Rule 15 of the Tariff Rules provides for 'Certificate of Origin'. It reads: "15. Certificate of origin- The goods eligible for preferential treatment under the agreement shall be supported by a Certificate of Origin issued by an authority designated by the Government of ....
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....ill of Entry' may be amended after clearance of the goods for home consumption yet, such amendment may be made only on the basis of documentary evidence that may have been in existence at the time when the goods were so cleared and not on the basis of any document prepared thereafter. The section is thus plain and very clear in its language and does not admit of any doubt that the subject 'Bills of Entry' once cleared against payment of duty, cannot be amended to any extent except on the strength document pre-existing from before the date of clearance of that 'Bill of Entry'. If the aforesaid section is to be applied to the facts of the present case, certainly there is no doubt that the amendment to the 'Bills of Entry' had to be confined only to such instances out of the 58 subject 'Bills of Entry' extracted in the chart above, where the 'Certificate of Origin' had been issued on a date prior to the date when the peculiar subject 'Bill of Entry' was cleared by the custom authorities. However, Section 149 does not express the complete intent of the Act. Section 25 of the Act provides for exemption for payment of custom duty.....
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....e no role to play. Nothing is to be read in, nothing is to be implied; one can only look fairly at the language used and nothing more and nothing less." 28. A similar view is to be found in CIT v. Tara Agencies [CIT v. Tara Agencies, (2007) 6 SCC 429 : (2007) 292 ITR 444] wherein this Court had concluded that: (SCC p. 447, para 62 : ITR p. 464, para 69) "62. Therefore, the legal position seems to be clear and consistent that it is the bounden duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated." 29. The oft-quoted observations of Rowlatt, J. in Cape Brandy Syndicate v. IRC [Cape Brandy Syndicate v. IRC, (1921) 1 KB 64] may also be noticed at this juncture. On the question arising, the learned Judge had observed that: (KB p. 71) "... in a taxing [statute] one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language ....
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.... liability on the goods in question. Unless there pre-existed such duty liability, there would never have arisen an occasion to grant exemption therefrom. However, the exemption granted being subject to conditions, the Tariff Rules seek to provide and regulate the conditions for grant of such exemption in accordance/terms of Section 25 of the Act and exemption notification no. 151 dated 31.12.2009. In the instant case, the goods in question chiefly LCD panel were clearly exigible to payment of custom duty. Thus, but for a notification being issued by the Central Government under Section 25 of the Act the same could be cleared for home consumption only against duty payment. For that reason alone, at the time of the obtaining clearance of the subject 'Bills of Entry', duty payment was required to be made by the assessee. However, at the same time, it is undisputed that at the time when the goods were so cleared for consumption into the country, the Central Government had issued Notification No. 151 dated 31.12.2009 under Section 25(1) of the Act to provide for a general exemption from payment of custom duty on specified goods mentioned in the table appended to that noti....
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....counsel for the revenue has been prepared by the revenue authorities in the backdrop of their understanding that provisions of Section 149 of the Act govern the claim made by the assessee. According to that understanding Section 149 of the Act prescribes that the 'Bills of Entry' may be amended only on the strength of the document/s existing on the date of clearance of the goods for home consumption. According to us, that criteria is not valid or relevant to resolve the dispute involved in the present case. As we have already noted above, the scheme of Section 25 of the Act granting exemption exists by way of an exception to the general scheme of duty payment (which for the present purpose of considering the argument raised by the revenue, we confine to Section 12 and Section 149 of the Act). The latter provisions being part of scheme of levy of duty would not govern the claim of exemption raised in the present case. For the purpose of the deciding the questions raised in the present appeal it needs to be examined whether the assessee had complied with the condition/s for grant of exemption under Section 25 of the Act read with exemption notification and the Tariff....
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....isfied as to existence of such circumstances before the exemption may be allowed. In the facts of the present case, we find that the assessee clearly claimed to have fulfilled the condition with respect to issue of 'Certificate of Origin' for grant of exemption, subsequently, that is after clearance of the goods for home consumption. In view of the discussion made above, such a stand is clearly consistent with and therefore permissible to be taken by the assessee by virtue of clear language of Section 25(1) of the Act and the exemption notification and Tariff Rules proved by the Central Government. Then for that exemption to be actually granted to the assessee, it must, in terms of notification number 151 dated 31.12.2009 prove to the satisfaction of the relevant custom authority that the goods had originated from the Republic of Korea. The manner of proof is required to be given by the assessee in accordance with the provisions of the Tariff Rules, this origin being the clear language of the aforesaid notification itself. The manner of proof provided by the Tariff Rules, as discussed above, by virtue of Rule 15 read with paragraph 3(4) of Annexure-III of the Tarif....