@JUDGMENTTAG-ORDER
Akil Kureshi, J.@mdashRevenue is in appeal against the judgment of the Tribunal dated 27-8-2010 raising following questions for our consideration:
(a) Whether the interpretation of the Tribunal that time-limit prescribed u/s 48 for clearance of the goods within 30 days cannot be read into Section 46 of the Customs Act, 1962 is legal, proper and correct?
(b) Whether the findings of the Hon''ble Tribunal that there is no time-limit prescribed for filing Bill of Entry u/s 46 of the Customs Act, 1962 is legal, proper and correct?
(c) Whether no penalty u/s 117 of the Customs Act, 1962 can be imposed upon an importer for his failure to file Bill of Entry and clear the goods within 30 days of unloading thereof at a customs stations?
From the record, we notice that the adjudicating authority had imposed different penalties purportedly u/s 117 of the Customs Act 1962 (Act for short) for breach of the provisions contained in Section 46 read with Section 48 of the Act. Such penalties were challenged before the Appellate Authority who allowed the appeal and reversed the order-by-order dated 17-10-2010. He was of the opinion that there was no time-limit for filing bill of entry u/s 46 and therefore, no penalty could have been imposed.
2. The Tribunal in the appeal filed by the Department confirmed the view of the Commissioner. The Tribunal approved the following observations made by the appellate Authority:
Where goods imported as cargo, Section 46 of the Act requires a bill of entry to be filed for its clearance. This section does not prescribe any time period from the date of the import during which such declaration should be filed. Sub-section (3) of Section 46 of the Act stipulates that bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import goods are not cleared for home consumption or warehoused or transshipped within 30 days from the date of unloading thereof at a customs station or within such other extended period as may be allowed by the proper officer or the title to the imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the custodian. Thus, Section 48 of the Act, empowers the proper officer either to grant further time for clearance of imported goods or to permit the custodian to sell of such goods. The section does not contain any penal consequences in the event a bill of entry is not filed or goods are not cleared within the time stipulated. If the importer had not cleared the goods within the prescribed time-limit, then nothing prevented the Customs/Custodian to take recourse to dispose of the imported goods invoking the provisions of Section 48 read with Section 150 of the Act, after expiry of 30 days from the date of unloading of the goods. Apart from that there are no explicit powers enjoined in Section 48 of the Act, on the proper officer to attach preconditions, either monetary or otherwise, in lieu of such extension of time period. Failure to clear the goods within the time stipulated u/s 48 of the Act is not a contravention of the nature prescribed u/s 117 of the Act.
3. We are in agreement with the view of the Commissioner as confirmed by the Tribunal. Section 46 of the Act provides for entry of goods on importation and reads as under:
46. Entry of goods on importation. - (1) The importer of any goods other man goods intended for transit or transshipment, shall make entry thereof by presenting electronically to the proper officer a bill of entry for home consumption or warehousing in the prescribed form:
Provided that the Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, allow an entry to be presented in any other manner:
Provided further that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section the proper officer may, pending the production of such information permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed u/s 57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier of the consignor.
(3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report, as the case may be: Provided that the Commissioner of Customs may in any special circumstances permit bill of entry to the presented before the delivery of such report:
Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel or the aircraft by which the goods have been shipped for importation into India is expected to arrive within thirty days from the date of such presentation.
(4) The importer while 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, relating to the imported goods.
(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.
4. Section 48 of the Act prescribes procedure in case of goods not cleared, warehoused, or transshipped within 30 days after unloading and reads as us under:
48. Procedure in case of goods not cleared, warehoused, or transshipped within thirty days after unloading. - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transshipped within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof; Provided that -
(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time;
(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct.
Explanation - In this section, "arms" and "ammunition" have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959).
5. Section 117 of the Act provides for penalties for contravention, etc. not expressly mentioned and reads as under:
117. Penalties for contravention, etc. not expressly mentioned. - Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding one lakh rupees.
6. Upon combined reading of the above-mentioned statutory provisions, it can be seen that Section 46 nowhere provides for any time-limit for filing a bill of entry by an importer upon arrival of goods. It is, of course, true that Section 48 permits the authorities to sell the goods after following the procedure if within thirty days of unloading the same at the customs station, the same are not cleared for home consumption or warehoused or transshipped. This is entirely different from suggesting that u/s 46 of the Act, there is any time-limit prescribed for filing of bill of entry. In that view of the matter, Section 117 of the Act would not come in picture since it cannot be stated that the importer breached any provision. Tax Appeal is therefore, dismissed.
