TaxTMI 
TaxTMI 
2025 (6) TMI 777
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.... exist by the end of the millennium. No matter that the Empire is no more even as the religion of that Empire named for the man who died that day lives on. What mattered was not who was made to pay the price but that the State had to extract the price. It is on the bedrock of similar foundational engagement of the State, not with people on this occasion but with commodities, that M/s BK Rekhatex (HK) Ltd has arraigned Commissioner of Customs (Imports), Jawaharlal Nehru Customs House, Nhava Sheva, as respondent before us, over the decision [ order-in-appeal no. 427(Import) Noting)/2023(JNCH)/Appeals dated 26th April 2023 ] of Commissioner of Customs (Appeals), Mumbai - II. 2. And it is not as if the impugned order was not in favour of the appellant; it was and, yet, here they are. What 'copper rods', the goods impugned in the proceedings leading to the appeal, and the appellant, a limited company registered in Hong Kong - a special territory of the Peoples Republic of China - and a seller, finding themselves locked in dispute within the frame of Customs Act, 1962, a tax legislation of the twentieth century, have aught to do with a long gone assertion of might by an Establishment ....
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....hile goods may be liable for confiscation across the continuum for being at the wrong place, misdeclaration as cause will not arise till bill of entry has been filed under section 46 of Customs Act, 1962. The impugned goods were brought to a customs station on arrival in India, there is no prohibition on import of 'copper rod' into India either under Customs Act, 1962 or any other law, the goods, though yet to be processed for 'out of customs charge' under section 47 of Customs Act, 1962, had been entered to be cleared for home consumption and there is no submission, either before us or the lower authorities, that any condition of import had been breached or any misdeclaration had occurred. Indeed, considering the stage of processing, with M/s Shine Metal Industries unable, in the absence of documents of title, to take delivery from agent of shipper, even misdeclaration of value or rate of duty was rectifiable before clearance by re-assessment under section 17(4) of Customs Act, 1962 and 'post-importation' condition, if any, was, as yet, unfastenable on goods yet to be cleared. Be that as these may, seizure of the goods is not an issue before us except for being the crutch that the....
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....nance. This, we must concede, is not controversy before us even as the goods have not been taken over from the custodian. 7. Be that as it may, Learned Counsel for appellant submitted that Deputy Commissioner of Customs (Import-Noting), Jawaharlal Nehru Customs House, Nhava Sheva had rejected the application for amendment of manifest by reference to circular [ circular no. 14/2017-Customs dated 11th April 2017 ] of Central Board of Excise & Customs (CBEC) stipulating documentary requirements that, notwithstanding the admitted availability of 'no objection' dated 4th December 2020 from M/s Shine Metal Industries, was held as unfulfilled and, probably, from having been overwhelmed by the purported finality of seizure estopping any decision on goods. It was pointed out that, by misconstruing order in writ proceedings as, effectively, assigning the determination of ownership to customs officialdom, the original authority felt obliged not to disrupt status quo by reason of circular supra, prescribing adjudication 'for major amendment involving fraudulent intention of substantial revenue implication', and facility [ facility no. 47/2016 JNCH dated 11th April 2017 ], of Jawaharlal Nehr....
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....the amendment, as directed, was perverse in having transformed an order in their favour into cause of grievance. 10. Learned Authorized Representative took us through the facts of the case and reiterated the grounds on which the original authority had declined to permit substitution of the importer. 11. The contention of Learned Counsel on the lack of application of mind on the part of the original authority does resonate with the schema of Customs Act, 1962. The appellant had sought for incorporation of M/s Sagun Copper as consignee in four of the 'lines' in the relevant manifest filed by person-in-charge of conveyance, or substitute agent, as obliged by section 30 of Customs Act, 1962. The manifest is a summary document which contains, inter alia, tabulation of information in the bills of lading, issued to shipper as token of assumption of responsibility for safe delivery to the consignee intended by the shipper, corresponding to each consignment on board and, much like any other document, amenable to amendment by proper procedure. The manifest is, thus, a master for control over cargo on vessel landed in India till cleared for home consumption and for action to be initiate....
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....0(3) of Customs Act, 1962 by premising authority to determine title to the goods when the only consideration should have been fraudulent intention in application for amendment. There can be no fraudulent intent in making an entry under section 46 of Customs Act, 1962 for clearance of goods after assessment in accordance with law. There can be no fraudulent intent when goods that may be prohibited for import by law are not shed of such prohibition by amendment in manifest. There can be no fraudulent intent when proceedings for re-assessment under section 17 are not underway. There can be no fraudulent intent with obligations devolving on importer, if any, arising only after clearance under section 47 of Customs Act, 1962. There can be no fraudulent intent when proceedings already under way against any person is not stultified by amendment nor does seizure of goods stand in the way of exercise of specific empowerment under section 30 of Customs Act, 1962. Most of all, the original authority appeared to be oblivious of the demonstrated disinclination of M/s Shine Metal Industries to complete the process of clearance and oblivious that being influenced by reported conditional willingne....
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....unal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.' in Union of India v. Kamalakshi Finance Corporation Ltd [1991 (55) ELT 433 (SC)]. 15. The competent authority to carry out the direction of the first appellate authority was so lost to its statutory obligations as to revive the process of scrutiny of applications by calling upon the appellant to evince title to the goods which was not within its authority under law. The competent authority, by doing so, sat in judgement over its own rejection in fresh proceedings which is contrary to all canons of adjudicatory propriety. The competent authority, by initiating fresh proceedings, has sent the order of the first....
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....les of interpretation; any contrary allowance bespeaks adversarial equation of executive and judicial wings. There was no cause or jurisdiction to misread the appellate decision. Further, had the process prescribed in section 48 of Customs Act, 1962 been initiated in the manner prescribed in law, the custodian appointed under section 46 of Customs Act, 1962 would not have had to bear the consequence of holding cost and imposition of demurrage. The jurisdictional Commissioner of Customs shall, on application of appellant, issue certificate for waiver of demurrage. 18. There is no appeal by either side against the content and directions in the order. The cause of grievance stems from the communication received by the appellant from the Deputy Commissioner of Customs which has the implication of revival of invitation to customs authorities to decide on the person who should be filing the bill of entry. The claim, if any, of M/s Shine Metal Industries stands rescinded by operation of section 48 of Customs Act, 1962 and failure to dispose off the goods, whatever be the reason, does not, of itself and without permission that may now involve retrospective approval, revive the right to ....