M/S. Esquire Multiplast PVT. LTD vs. The Assistant Commissioner Of Customs (Appraising Imports)

The brief relevant facts for the determination of the writ petition are: The petitioner is a company doing manufacture, export and trading of various kinds of products. The petitioner procures materials for the purpose of manufacture from both domestic and international markets. The petitioner has availed several schemes announced under the Foreign Trade Policy, including the Advance Authorisation Scheme (in short, ‘Scheme’). The petitioner imported 99 metric tons of Homo Polypropylene HP2106N (plastic granules) from China as per Ext P1 invoice. For the clearance of the goods, the petitioner had submitted Ext P2 bill of entry. But, by an act of inadvertence, the petitioner had applied for duty exemption as per Notification No.18/2015-Customs dated 1.4.2015, which was meant for import of goods under the Scheme. As the import was not under the Scheme, the petitioner removed the claim of duty exemption from the bill of entry. However, by oversight, the claim of exemption notification was not removed from the notification slot against IGST and the IGST assessed happened to be exempted. The above mistake was not identified either by the petitioner or the respondent, who assessed Ext P2 bill of entry and the goods were cleared. At the time of reconciliation of accounts, the petitioner realised the mistake. Immediately, the petitioner submitted Ext P3 letter for cancellation of out of charge and reassessment of Ext P2 bill of entry. But, the same did not evoke any response from the respondent. The respondent is not accepting the request made by the petitioner for recalling and reassessing Ext P2 bill of entry, but is insisting upon the petitioner to pay the IGST manually along with the interest. In the event of petitioner making a manual payment of IGST, the amount will not get reflected in the Customs EDI system and the GSTIN portal, which would deprive the petitioner of his statutory entitlement. The Central Board of Indirect Taxes and Customs (CBIC) has promulgated Ext P4 circular, laying down the procedure to be followed by officers in situations like the one on hand. In the light of Ext P4, the petitioner requested the respondents to recall and reassess Ext P2 bill of entry. There is inaction on the part of the respondent. Hence, the writ petition.

The respondent has filed a counter affidavit, denying the allegations in the writ petition. The respondent has, inter-alia, contended that the petitioner has an alternative statutory remedy of appeal. The reassessment cannot be done until the order is modified under Sec.128 of the Customs Act,1962. The petitioner has not submitted any order directing the office to modify the assessment. Ext P4 circular is not applicable to the case on hand. The writ petition is meritless and is liable to be dismissed.

Heard; Sri.M.Balagopal, the learned counsel appearing for the petitioner and Sri.Thomas Mathew Nellimoottil, the learned Standing Counsel appearing for the respondent.

Sri.M.Balagopal reiterated the contentions in the writ petition. He placed reliance on the decision of the Bombay High Court in Dimension Data India Pvt.

Sri.Thomas Mathew Nellimoottil argued that when there is a statutory remedy of appeal, this Court may not entertain the writ petition under Article 226 of the Constitution of India. Hence the petitioner may be relegated to exhaust its statutory remedy.

The petitioner asserts that it committed a bona fide mistake while preparing the bill of entry. The petitioner had inadvertently applied for duty exemption as per the notification dated 1.4.2015, which was meant for import of goods under the Scheme and failed to remove the exemption under IGST slot. The respondent also did not realise the above mistake, while clearing the goods. Later, when the petitioner realised the mistake, it brought the mistake to the notice of the respondent through Ext P3 request. Yet, the same was not considered. The petitioner relies on Ext P4 CBIC circular, to recall and reassess the bill of entry in view of the mistake that has crept in.

On a careful perusal of the pleadings and materials on record, it is evident that the mistake pointed out by the petitioner to be genuine and bona fide.

In the light of Ext P4 circular and the law laid down in Dimension Data (supra), which I do concur and agree, I am of the definite view that the respondent is to be directed to reassess Ext P2 bill of entry, in accordance with law, which will not cause any prejudice to the respondent and in turn do complete justice to both sides. Thus, notwithstanding the plea of alternative remedy, I am inclined to allow the writ petition by directing the respondent to reconsider the matter afresh in view of Ext P4 circular.