1. The assessee has come in appeal against the Order-in-Appeal No.81/2019-TTN (CUS) dated 04.10.2019 passed by the Commissioner of Customs
and Central Excise (Appeals), Tiruchirappalli.
2. Brief facts, as gathered from the documents placed on record and the Appeal Memorandum, are that the vessel carrying 625 MTs of Heavy
Melting Scrap covered by Bill-of-Lading No. COM/MLE/V09/18/02 dated 19.08.2018 sent by the shipper M/s. Rehoboth Worldwide Limited, Unit B,
LOT 49, 1st Floor, Block F, Lazenda Warehouse, 3 Jalan Ranca, Ranca 8700 Ft., Laubuan, Malaysia arrived at Tuticorin Port on 25.08.2018 covered
under IGM No. 2202897 / 20.08.2018 and M/s. Siva Agencies, Tuticorin as consignee who sold the cargo on high sea sales basis to M/s. St.
Antony’s Traders, Tuticorin; that the appellant purchased the import consignment of 625 MTs of Heavy Melting Scrap (HMS) on High Sea Sales
from M/s. Siva Agencies, Tuticorin vide Invoice No. SVA/18-19/HSS-01 dated 21.08.2018; that due to some financial issues, M/s. Siva Agencies did
not hand over the original documents to the appellant and the liner filed the IGM in the name of the first consignee i.e., M/s. Siva Agencies; that on
12.09.2018, the first consignee M/s. Siva Agencies filed Bill-of-Entry No. 8015798 dated 12.09.2019; that the liner, vide letter dated 21.02.2019, filed
an application for amending the consignee name and address in the IGM and that the amendment was approved by the Department vide Amendment
No. 3350345 dated 22.02.2019 in File C.No.VIII/48/11/2018-2019-IG Vol-IV; that the assessee paid the penal charges of Rs.1,48,685/- vide challan
No. 2026844145 dated 04.05.2019 for the Bill-of-Entry No. 8015798 dated 12.09.2018 to avoid demurrage and CFS charges.
3. In view of the above levy of penal charges for late presentation of Bill-of-Entry, the assessee preferred appeal before the Commissioner of
Customs and Central Excise (Appeals), Tiruchirappalli, who vide order impugned herein rejected the appeal filed by them. Aggrieved by the same, the
assessee has filed the present appeal before this forum.
4. Heard Shri A.K. Jayaraj, Learned Advocate appearing for the assessee-appellant and Shri S. Balakumar, Learned Authorized Representative
appearing for the Revenue-respondent.
5. Learned Advocate for the appellant would submit at the outset that in an identical situation, this very Bench of the CESTAT has deleted the late fee
in the cases of M/s. Blueleaf Trading Company v. The Commissioner of G.S.T. & Central Excise, Tiruchirappalli in Customs Appeal No. 42670 of
2018 and ors. [Final Order Nos. 40772 to 40780 of 2019 dated 08.05.2019] and M/s. ECOM Gill Coffee Trading Pvt. Ltd. v. Commissioner of
Customs, Tuticorin in Customs Appeal No. 42103 of 2018 [Final Order No. 41155 of 2019 dated 30.09.2019].
6. Per contra, Learned Authorized Representative for the Revenue supported the findings of the lower authorities.
7. Having heard both sides, I am of the view that this Bench has already taken a decision in the above cases, which are not disputed by the
Department, by making the following observations :
“7.3 The impugned order referring to this Order-inOriginal dated 08.11.2017, has also not questioned the bona fides of the appellant. In
his order, however, the Commissioner (Appeals) has only directed the adjudicating authority to charge the assessee the late fee from the
date of agreement made between the shipper and the appellant, which was nobody’s case and not even as per law. As discussed above,
Section 46 ibid authorizes the proper officer to collect late fees subject to his ‘non-satisfaction’ of the cause shown and there is no
via media. The appellant admittedly is not the first importer, but a saviour who came forward at a later stage. The Act only contemplates
charging of late fee from the importer per se. It is clear from the impugned order as well as that of the Commissioner (Appeals) that there
was no reason/question of ‘non-satisfaction’ as to the reasonable cause shown by the appellant. In the above factual background
therefore, it is very difficult to accept as to how the Order-in-Original came to be passed against a Customs Broker just because it made a
request. Appellant is clearly not the first importer, there is request for amendment in IGM on record, allowed by the Revenue after collecting
requisite fees and these are clearly post-import developments. The subsequent developments, as observed supra, were perhaps necessitated
because of the goods being perishable. Clearly, no mala fide is found in the above developments by the Revenue and therefore, it can be
safely assumed that the Revenue was otherwise satisfied with ‘sufficient cause’.
8. For the above reasons, I am of the view that the impugned order is not sustainable and hence, the same is set aside.
9. The appeals are allowed.â€
8. In view of the above and in the absence of any contrary decisions or orders, I am of the view that the impugned order is not sustainable and
accordingly, the same is set aside.
9. In the result, the appeal is allowed with consequential reliefs, if any, as per law.
(Order pronounced in the open court on 26.03.2021)
