2021-VIL-313-CESTAT-CHE-CU

CUSTOMS CESTAT Case

Customs - Appellant is a vessel operator - Imposition of penalty under Section 117 of the Customs Act for failure to file Export General Manifest – violation of Section 41 of the Customs Act, 1962 – HELD - though amended Section 41 states that the EGM has to be filed before departure of the conveyance from the Customs station, it was not so earlier. In practice it was usually also filed within 7 days from the date of sailing of the vessel - The shipping bills in all these appeals are prior to 14.06.2018. From the Public Notice No.39/2017 and Public Notice No.17/2018, it is seen that there was a sudden shift from the practice of filing the EGM within seven days from the date of sailing of the vessel to the requirement of filing EGM before departure of the vessel. The period involved in these shipping bills are during this transition period – prior to introduction of Sea Cargo Manifest and Transhipment Regulations 2018 as well as after, there is provision to amend or supplement the EGM – as per sub-section (3) of Section 41 of the Customs Act, an incomplete EGM can be corrected - The law thus foresees that errors/omissions can occur while filing the EGM. The appellant in this case has rectified errors / omissions when pointed out by the department – Further, as per Rule 96 of the CGST Rules, 2017, the shipping bill filed by an exporter shall be deemed to be an application for refund of integrated tax, once both EGM and valid return in Form GSTR-3/GSTRB are furnished by the applicant - If there was continued non-compliance even after the errors being pointed out by the department, the circumstances would have been different and penalty may be imposable - the amended Section 41 itself provides for penalty not exceeding Rs.50,000/- only if proper officer is satisfied that there is no sufficient cause for delay in filing EGM. This being so, the invocation of Section 117 is not legal or proper - the penalties imposed under Section 117 of Customs Act are unwarranted and cannot sustain – the impugned orders are set aside and appeals are allowed

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