Jai Durge Trading Co vs Commissioner Of Customs (Import)

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.C/88253/14

(Arising out of Order-in-Appeal No.1717 (Import Noting)/2014 (JNCH)/IMP-1655 dated 11/04/2014 passed by Commissioner of Customs (Appeals), Nhava Sheva)

For approval and signature:

Honble Mr. P.R. Chandrasekharan, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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Jai Durge Trading Co. Appellant Vs. Commissioner of Customs (Import), Nhava Sheva Respondent

Appearance: Shri Anil Balani, Advocate for appellant Shri.A.K.Singh, Addl. Comm. (AR), for respondent

CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 02/01/2015 Date of Decision : 02/01/2015

ORDER NO

1. The appeal is directed against Order-in-Appeal No.1717 (Import Noting)/2014 (JNCH)/IMP-1655 dated 11/04/2014 passed by Commissioner of Customs (Appeals), Nhava Sheva. Vide the impugned order, the learned lower appellate authority has dismissed the appeal of the appellant, M/s.Jai Durge Trading Co., New Delhi, wherein the said authority has allowed amendment of the IGM filed by the shipping agent, M/s. Samudera Shipping Line (India) Pvt. Ltd. for substitution of the name of the importer from M/s.Jai Durge Trading Co. to M/s.BGH Exim Ltd., inasmuch as the appellant failed to clear the goods within the time period stipulated and also refused to grant NOC for amendment to the IGM for substitution of the importers name. Hence, the appellant is before us.

2. The learned Counsel for the appellant submits that in the present case since the appellants name is sought to be deleted from the IGM and substituted with that of M/s.BGH Exim Ltd., the appellants claim as the goods under import is prejudicially affected and hence, the amendment to the IGM should not have been permitted by the lower authorities.

3. The learned Additional Commissioner (AR) appearing for the Revenue submits that as per Section 149 of the Customs Act, 1962, the proper officer has the discretion to authorise amendment of any documents after it has been presented to the Customs. In the present case, the IGM has been filed under Section 30 of the Customs Act, by the agent of the shipping line and the said IGM can be amended for sufficient and valid reasons and it is the discretion of the proper officer to allow the amendment or not. In the facts of the present case, the appellant, M/s.Jai Durge Trading Co., did not clear the goods covered by the IGM consisting of 1,19,887 Kgs. of black matpe within a period of thirty days as stipulated under Section 48 of the Customs Act nor did they discharge the Customs duty liability. Thus, the appellant has abandoned the goods in question; therefore, the shipping agent has applied for amendment of the IGM for substitution of appellants name with that of M/s.BGH Exim Ltd., inasmuch as the goods were incurring heavy detention/demurrage charges and the latter was wiling to clear the goods. Accordingly, the Assistant Commissioner has allowed amendment of the IGM. Therefore, the said action of the proper officer cannot be faulted at all and consequently the order of the lower appellate authority is also correct in law.

4. I have considered the submissions made by both the sides.

4.1 Section 149 of the Customs Act provides for amendment of IGM as per the discretion of the proper officer after the IGM has been presented. In the present case, the original importers name was indicated in the IGM as M/s.Jai Durge Trading Co. However, the said importer did not clear the goods nor did he pay the duty within thirty days from the date of unloading of the goods as stipulated under Section 48 of the Customs Act, 1962. This clearly shows that the appellant, M/s.Jai Durge Trading Co., was not interested in clearance of the goods and had abandoned their claim of the goods. Therefore, the amendment of the IGM sought by the shipping agent for substituting the name of the importer with M/s.BGH Exim Ltd. cannot be faulted at all. An identical matter came up for consideration before the Honble Delhi High Court in the case of Agrim Sampada Ltd. & Another Vs. UOI in CW No.2438/2001. The Honble High Court held that when an importer fails to pay foe the goods and abandons/refuses them, the supplier continues to remain the owner of the goods and that he can transfer the document of title to another person and thereafter person will be entitled to clear the goods. The ratio of the said decision would apply squarely to the facts of the present case.

5. In view of the above legal and factual position, I do not find any merits in the appeal and accordingly, the same is dismissed.

(Operative part of the order pronounced in Court)

(P.R. Chandrasekharan) Member (Technical)

pj

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