Esquire Multiplast Pvt. Ltd. v. Assistant Commissioner of Customs (Appraising Imports)

1 WP(C) No.19836 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 ``` ## **`WP(C) NO. 19836 OF 2023`** ## **`PETITIONER/S:`** ``` M/S. ESQUIRE MULTIPLAST PVT. LTD, PLOT NO. 64, ESQUIRE VALLEY, MAJOR INDUSTRIAL ESTATE, SOUTH KALAMASSERY, COCHIN, REPRESENTED BY ITS CHIEF FINANCIAL OFFICER, SHRI. RAJESH P., PIN - 683104 ``` ``` BY ADVS. M.BALAGOPAL R.DEVIKA ANJALI MENON ``` ## **`RESPONDENT/S:`** ``` THE ASSISTANT COMMISSIONER OF CUSTOMS (APPRAISING IMPORTS), CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN., PIN - 682009 ``` ``` BY ADV THOMAS MATHEW NELLIMOOTTIL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WP(C) No.19836 of 2023 ## **C.S DIAS,J.** **--------------------------WP(C) No.19836 of 2023 ----------------------------Dated this the 11[th] day of July, 2023[ .]** ## **JUDGMENT** The writ petition is filed, inter alia, to direct the respondent to recall and reassess Ext P2 bill of entry in terms of Ext P4 circular. 2. 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 3 WP(C) No.19836 of 2023 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 4 WP(C) No.19836 of 2023 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 5 WP(C) No.19836 of 2023 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. 3. The respondent has filed a counter affidavit, denying the allegations in the writ petition. The respondent has, inter-alia, contended that the petitioner 6 WP(C) No.19836 of 2023 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. 4. Heard; Sri.M.Balagopal, the learned counsel appearing for the petitioner and Sri.Thomas Mathew Nellimoottil, the learned Standing Counsel appearing for the respondent. 5. 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.** 7 WP(C) No.19836 of 2023 **Ltd vs. Commissioner of Customs** [ 2021 (376) E.L.T 192(Bom.) to fortify his contentions. He submitted that it is the bounden duty of the respondent to exam whether there is misclassification/wrong classification of tariff on the head of imported goods leading to lesser levy/ excess levy of customs duty. The respondent has the power and authority to reassess the duty leviable on the goods under Sec.17 and to correct errors under Sec.149 of the Customs Act, 1962. Therefore, notwithstanding the statutory remedy of appeal, this Court can entertain the writ petition and direct the respondent to reconsider the matter afresh. 6. Sri.Thomas Mathew Nellimoottil argued that when there is a statutory remedy of appeal, this Court 8 WP(C) No.19836 of 2023 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. 7. 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 9 WP(C) No.19836 of 2023 circular, to recall and reassess the bill of entry in view of the mistake that has crept in. 8. 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. 9. 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 10 WP(C) No.19836 of 2023 petition by directing the respondent to reconsider the matter afresh in view of Ext P4 circular. Resultantly, the writ petition is ordered as follows: - (i) Ext P2 bill of entry is recalled. (ii) The respondent is directed to reassess Ext P2 bill of entry, in accordance with law, after affording the petitioner an opportunity of being heard. SD/- sks/11.7.2023 **C.S.DIAS, JUDGE** 11 WP(C) No.19836 of 2023 ## **`APPENDIX OF WP(C) 19836/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE COMMERCIAL INVOICE NO. INV- EXP231057751 DATED 24.03.2023 ISSUED TO THE PETITIONER BY THE OVERSEAS SUPPLIER ``` ``` Exhibit P2TRUE COPY OF THE BILL OF ENTRY NO. 5667868 DATED 25.04.2023 ``` ``` Exhibit P3TRUE COPY OF THE LETTER DATED 19.05.2023 SUBMITTED BY THE PETITIONER'S CUSTOMS BROKER ``` - `Exhibit P4 TRUE COPY OF THE CIRCULAR NO. 16/2023-CUS. DATED 07.06.2023 ISSUED BY THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS (CBIC)` - `Exhibit P5 TRUE COPY OF THE REQUEST LETTER DATED 08.06.2023 SUBMITTED BY THE PETITIONER TO RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE STANDING ORDER NO. 16/2020 DATED 16.06.2020 ISSUED BY THE OFFICE OF THE COMMISSIONER OF CUSTOMS, NS-I, MUMBAI ZONEII, JAWAHARLAL NEHRU CUSTOM HOUSE` - `Exhibit P7 TRUE COPY OF THE STANDING ORDER NO. 6/2022 DATED 04.07.2022 THE COMMISSIONER OF CUSTOMS, NS-III, JAWAHARLAL NEHRU CUSTOM HOUSE`