AI Drafter 
TaxTMI 
TaxTMI 
2020 (1) TMI 326
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....he Customs Act, 1962, Customs Tariff Act, 1975, and, violative of Article (s) 14, 19(1)(g), 265 and 300A of the Constitution of India; and b. To prohibit the Respondents from seeking to assess the import of the vessel - MV Jag Aditi which was imported on 28.05.2012, to Integrated tax ('IGST') in terms of section 3(7) of the Customs Tariff Act, 1975 (which levy was introduced only w.e.f 01.07.2017), on the ground that the same is wholly without jurisdiction, contrary to the provisions of the Customs Act, 1962, Customs Tariff Act, 1975, Integrated Goods and Services Tax Act, 2017, and, violative of Article(s) 14, 19(1)(g), 265, and 300A of the Constitution of India; and c. To call for the records of the letter bearing number F.No.S6/108/2018-IMP and dated 19.09.2018 from the Respondent No.1 and to quash the same; and d. pass such other order(s) as this Hon'ble Court deems fit and proper in the extraordinary circumstances of the case in the interests of justice. We have heard the submissions of Sri Rohan P. Shah, learned senior counsel representing Sri K. Vivek Reddy, learned counsel appearing for the petitioner; of Sri Y.N. Vivekananda, learned senior st....
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....stating that the line inclusion as requested in the letter of the SAIL was not being permitted and that due to failure in the ICEGATE system, they were not able to file a bill of entry in respect of the vessel till the sailing of the vessel from the port, on 31.05.2012. The petitioner when preparing for the vessel to come into Visakhapatnam port in June, 2018, during the course of its operation as a 'conveyance', realised that the IGM and bill of entry had not been filed during its import on 28.05.2012 and voluntarily brought the same to the notice of the 3rd respondent - Commissioner of Customs (Import) by letter, dated 01.06.2018. While clarifying that there is no duty implication as the applicable customs duty and additional customs duty are 'NIL' at the first time of the import of the vessel, regularisation of the importation of the vessel was sought. Thereafter, a show cause notice, dated 03.07.2018, was issued by the 2nd respondent calling upon the petitioner to show cause as to why non inclusion of the vessel in the IGM and non filing of the bill of entry should not be considered as violations of Sections 30 & 46 of the Customs Act, 1962, and why penalty for violations shoul....
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....he vessel in May, 2012, the applicable customs duty was 'nil' and no customs duty was leviable on import of ships/vessels into India, the actions of the said authorities are wholly without jurisdiction and without authority of law. By filing the manual bill of entry, on 10.07.2018, the petitioner only had sought procedural regularisation as on 28.05.2012, at 'nil' rate of customs duty. If the customs authorities want to undertake the assessment/re assessment in 2018 as suggested in the letter, dated 19.09.2018, and not as on 28.05.2012, as requested in the manual bill of entry, the petitioner is then withdrawing the manual bill of entry so filed.' However, the 2nd respondent is seeking to continue with the assessment/re assessment proceedings of the vessel and has fixed the personal hearing on 21.12.2018, by intimating the same by letter, dated 10.12.2018. The respondents have neither withdrawn their actions to assess/re-assess the vessel nor issued a closure report post payment of penalties as per the order levying penalties. The vessel is imported to India in May, 2012. The respondents are seeking to assess/re-assess the vessel imported to India in May, 2012, only for the reason ....
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....charge of the obligation, the petitioner filed the bill of entry as is evident from the letter, dated 14.08.2018. The proper officer is yet to pass an order under the provision of Section 17(2) of the Customs Act, 1962, assessing the vessel. A personal hearing was afforded. A blatant transgression of the provisions of law was committed by the importers. The same is being dealt with in a fair and just manner. Ignoring the mechanism built in the law, the petitioner is seeking redressal by invoking extra ordinary jurisdiction of this Court on their imagined grievance when the due process of law was being undertaken and being attempted to be completed by the respondents. As per the provisions of the Act, on import of vessel into India, the importer is under an obligation to make a declaration under Section 30 of the Customs Act, 1962 and it is an intimation about the arrival of the vessel. A declaration under Section 46 of the said Act is also necessary. It is a declaration with the details of the value and classification of the goods in the form prescribed (the bill of entry) for self assessment. On filing of such declaration, the proper officer of the customs, after scrutiny and asce....
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....ittedly on 28.05.2012, and as penalties are deposited pursuant to the penalty order for violations of Sections 30 & 46 of the Customs Act, 1962, and that the bill of entry is only filed for regularisation and the same was withdrawn and the petitioner cannot be penalised for not filing the bill of entry in May, 2012, and that since the action is being questioned on want of authority and jurisdiction the writ petition is maintainable. It is inter alia contended that customs duty is charged as per the law in place when the goods are imported into India and not the law prevalent on the date of belated filing of the bill of entry due to non filing of the bill of entry on the date the vessel was imported into India. We have given earnest consideration to the facts & submissions. The first question is as to whether the levy of the penalty under order, dated 06.07.2018, and the deposit of the same by the petitioner absolved the petitioner from discharging of all its liabilities in respect of the import of the vessel, on 28.05.2012, into Indian waters; and, if so, whether the petitioner is not required to file the manual bill of entry at any time later and is, therefore, entitled to w....
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.... bill of entry, on 10.07.2018, having deposited the penalties in a total sum of Rs. 85,000/-, on 09.07.2018, by way of a demand draft. The petitioner contends on one hand that the said manual bill of entry is filed for procedural regularisation of import of the vessel. On the other, the petitioner also contends that there is no requirement of filing of manual bill of entry on the said date as the order imposing penalty was accepted and penalty was deposited and the said order has become final and the importation is regularised on payment of penalty. The petitioner also submits that a request was made for withdrawal of the manual bill of entry. The petitioner further contends as follows: - 'If the customs authorities want to undertake the assessment/re assessment in 2018 as suggested in the letter, dated 19.09.2018 and not as on 28.05.2012, as requested in the manual bill of entry, the petitioner is then withdrawing the manual bill of entry so filed.' The legal obligation to file a bill of entry even if the vessel on its import into Indian waters was exempt from duty is not in dispute. The penalties were imposed under Sections 30 & 46 of the Customs Act. Section 30 of the said Act c....
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.... presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, and such other documents relating to the imported goods as may be prescribed. (4A) the importer who presents a bill of entry shall ensure the following, namely: - (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. Be it noted that the above provision of law is amended from time to time and the period 'at any time not exceeding thirty days prior to' in the proviso under sub Section (3) was inserted by the Finance Act w.e.f 29.03.2018.....
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....other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft or the vehicle by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be. Section 2(15) "duty" means a duty of customs leviable under this Act. Section 3(7) of the Customs Tariff Act: "Any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8) [or sub section (8A) as the case may be." In this context, it is pertinent to now refer to the following decision: Order, dated 22.01.2012, of the High Court of Judicature at Bombay (Appellate Site) in W.P.(L).no.2921 of 2011 [between: SEAMEC Limited & Anr and Union of India & Ors]. The facts in the above decision are as follows: - 'A vessel was originally imported by Essar ....
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....d it is still to be established as to whether the procedure was followed when the vessel was originally imported. Prima facie there was no dispute of the fact that at the relevant time when the vessel was imported, there was a notification exempting the vessel from customs duty holding the field.' In that view of the matter, the High Court of Judicature at Bombay held that for the purpose of securing the provisional release of the vessel under Section 110A, the revenue would not be justified in including the value of the vessel of Rs. 53.55 Crores. Hence, the first condition was scaled down requiring to make a deposit of a duty in an amount of Rs. 12.77 Crores. In the decision of the CESTAT in Samson Maritime Ltd., v. Commissioner of Customs (Import), Mumbai [2016 (333) ELT 148 (Tri.Mumbai)], the facts and ratio are as follows: A Tug was imported and brought into India (at Chennai port) on a contract in November, 1997. No import duty was payable on ships imported during that period. The Tug was purchased by the appellant therein, on 18.03.1998. Thereafter, it was used for coastal runs in India. Port clearances were being granted for coastal runs for over a period of 14 years. At....
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....ritime Limited (supra) he contended that the judgment does not discuss the implication of Section 15 of the Customs Act, 1962 nor did it explicitly rule out the filing of bill of entry for regularisation of import as envisaged in Board's circular 16/2012, dated 13.06.2018, and that in terms of Section 15 of the Act, the rates of duty and tariff valuation on the date of filing of bill of entry, that is, 10.07.2018 are applicable. We are not impressed with this submissions for the following reasons and the contents of the provisions of law referred to supra: 'Admittedly the vessel is imported into the Indian waters on 28.05.2012 and the vessel was allowed to run after giving necessary port clearances for such runs on numerous occasions from its entry in the year 2012 till the manual bill of entry is filed. On coming to know of violations, a show cause notice was issued; and, by an order, dated 06.07.2018, penalty was imposed and thereafter penalty was deposited and a manual bill of entry was filed on 10.07.2018. Admittedly, as on the date of the import of the vessel into Indian waters on 28.05.2012 applicable customs duties were 'nil'; and, the integrated tax in terms of Section 3....