Bombay High Court
Hindustan Unilever Ltd vs The Union Of India And 7 Ors on 15 September, 2021
Bench: Makarand Subhash Karnik
34 & 32-WPL-13894 & WPL-8163-2021
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 13894 OF 2021
Sinochem India Company Pvt. Ltd. .. Petitioner
Vs.
Union of India & Ors. .. Respondents
Ms. Priyanka Rathi a/w Ashwini Chandrasekaran a/w Mr.
Kuldeep U. Nikam and Mr. Prasad Avhad for petitioner.
Mr. Pradeep S. Jetly, Senior Advocate a/w Mr. Sham Walve and
Maya Majumdar for respondent nos.1 to 6.
WITH
WRIT PETITION (L) NO. 8163 OF 2021
Hindustan Unilever Ltd. .. Petitioner
Vs.
The Union of India & Ors. .. Respondents
Mr. Prasad Paranjape a/w Mr. Sanjeev Nair i/by PDS Legal for
petitioner.
Mr. Pradeep S. Jetly, Senior Advocate a/w Mr. Sham Walve i/by
Mr. Ram Ochani for respondent nos.1 to 6.
Ms. Neha Mehta a/w Siddharth Chandrashekhar i/by Mr.
Siddharth Chandrashekhar for respondent no.7.
C0RAM : DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE : SEPTEMBER 15, 2021
34 & 32-WPL-13894 & WPL-8163-2021
PC:
1. These two writ petitions involve common questions of fact
and law; hence, the same have been heard together and shall
stand disposed of by this common order.
2. The petitioner in Writ Petition (L) No. 13894 of 2021 has
prayed for, inter alia, the following relief: -
"(a) To issue writ of Mandamus or any other appropriate
writ, order or direction directing the Respondent Nos. 2 to
6 to allow the amendment of BOE as requested by the
Petitioner vide the emails and the letters and amend the
GSTIN and the address in the BOE dated August 07,
2020;"
The right that the petitioner seeks to enforce, according to
Ms.Rathi, learned advocate representing it, flows from section
149 of the Customs Act, 1962 (hereinafter "the Act" for short)
3. The petitioner in Writ Petition (L) No. 8163 of 2021 seeks
an order for quashing of the impugned order dated December
18, 2018 of the respondent no.6, i.e., Assistant Commissioner
of Customs, EDI Section, JNCH. By such order, the respondent
no.6 declined to consider the application of the petitioner for
amendment of Bill of Entry under Section 149 of the Act on the
ground reading as follows:
"In this regard, it is informed that as per advisory received
from Director General (Systems), New Delhi, after `Out
of Charge' no change in GSTIN details is allowed.
Therefore, your request for change in GST No. in
34 & 32-WPL-13894 & WPL-8163-2021
aforementioned Bill of Entry, after `Out of Charge', cannot
be considered."
4. Ms. Rathi appearing for the petitioner in Writ Petition (L)
No. 13894 of 2021 has relied on the judgment and order dated
January 18, 2021 of the coordinate Bench of this Court in Writ
Petition (L) No. 249 of 2020 [Dimension Data India Ltd. Vs.
Commissioner of Customs & Anr.] wherein, upon
consideration of section 149 of the Act, it was ruled as follows:
"18. From a careful analysis of section 149, we find that
under the said provision a discretion is vested on the
proper officer to authorise amendment of any document
after being presented in the customs house. However, as
per the proviso, no such amendment shall be authorised
after the imported goods have been cleared for home
consumption or warehoused, etc. except on the basis of
documentary evidence which was in existence at the time
the goods were cleared, deposited or exported, etc. Thus,
amendment of the Bill of Entry is clearly permissible even
in a situation where the goods are cleared for home
consumption. The only condition is that in such a case,
the amendment shall be allowed only on the basis of the
documentary evidence which was in existence at the time
of clearance of the goods."
5. Ms. Rathi has also relied on the judgment and order dated
March 5, 2021 of the Madras High Court in Writ Petition Nos.
34627 and 34629 of 2019 [Hindustan Unilever Limited vs.
Union of India & Ors.], wherein it has been held as follows:
34 & 32-WPL-13894 & WPL-8163-2021
"14. The purpose of transition to the goods and services
tax regime is to facilitate the conduct of transactions pan
India and all consequences thereof including the seamless
availment of credit. The robustness of the information
technology system is critical to this venture. It is thus
incumbent upon the authorities to ensure that technology
is kept up to date in order to facilitate a seamless
exchange of data. The impugned order states that ICEA
System is limited in its operation and cannot permit any
changes once the goods have left for home consumption.
This is clearly erroneous even in the context of the 1944
Act that envisages amendments to be made even after
goods have been cleared. The operation of the 2017 Act
cannot go back to the Jurassic age denying an assessee
relief that it would have obtained under the earlier
enactment. Measures must be put in place for this
purpose and till such time this is done, amendment of
documents must be considered manually."
6. Mr. Paranjape, learned advocate for the petitioner in Writ
Petition (L) No. 8163 of 2021 has adopted the submissions of
Ms. Rathi. In addition, he has placed reliance on the order dated
June 23, 2021 of the Gujarat High Court in R/Special Civil
Application No.10515 of 2020 [Hindustan Unilever Limited
vs. Union of India] and submitted that such order has been
complied with by the respondents by allowing the requisite
amendment.
7. Mr. Jetly, learned senior advocate appears for the
respondents in both the writ petitions.
34 & 32-WPL-13894 & WPL-8163-2021
8. Opposing the submissions made on behalf of the
petitioners by Ms. Rathi and Mr. Paranjape, Mr. Jetly has placed
reliance on the decision of this Court reported in 2019 (369)
E.L.T. 543 (Bom.) [Micromax Informatics Ltd. vs. Union of
India] and submitted that once the goods are 'out of charge',
any application for amendment cannot be entertained in
exercise of power conferred by section 149 of the Act. Our
pointed attention is drawn to paragraph 30 of the decision in
Micromax Informatics Ltd. (supra), where it has, inter alia,
been held as follows:
"30. ... We may also record that the Counsel for the
Department had referred to Section 149 of the Act and
contended that it was open for the Petitioner to have bill
of entries amended. Section 149 of the Act provides that
a proper officer may at his discretion authorize a
document after it is presented in the Custom House to be
amended. Proviso to Section 149 clearly lays down that
no amendment of bill of entry shall be authorized to be
amended after imported goods have been cleared for
home consumption. Thus, the opportunity to have the bill
of entry amended in terms of Section 149 of the Act, was
simply not available to the Petitioner."
9. Mr. Jetly has also drawn our attention to the reply-affidavit
of the respondents to Writ Petition (L) No. 13894 of 2021 and
submitted that under the Indian Customs EDI System, no
amendments in GSTN ID can be made. Since paragraph 4 of
the reply-affidavit has been brought to our notice, we quote the
same hereunder:
34 & 32-WPL-13894 & WPL-8163-2021
"4. I say that the Petitioners filed Bill of Entry
No.8405273 dated 07.08.2020 for import of "Butachlor
Tech 95% w/w'. In the Bill of Entry, the Petitioners had
given their Delhi Unit address mentioned as `Sinochem
India Company India Pvt. Ltd., Bearing No.4H & 4J, 4th
Floor, M-6, Plaza Jasola District Centre, Jasola, New Delhi
with GSTIN [Goods and Service Tax Identification
Number] 07AALCS6343N9ZI registered in Delhi. A copy
of Bill of Entry No.8405273 dated 07.08.2020, is annexed
hereto and marked as Exhibit '1'. Accordingly, Bill of
Entry was cleared from Customs and the data was
immediately shared with the concerned GSTIN i.e. Delhi
for claiming IGST credit at GST portal.
I say that under the ICES system [Indian Customs EDI
System] once Out of Charge / Clearance is given for goods
imported and date thereof is transmitted to GSTN, no
amendments in GSTN ID can be made in the ICES system.
Following the request for amendment/corrections by the
Petitioners this Respondent changed the Branch address
from Delhi to Vadodara in the Bill of Entry No. 8405273
dated 07.08.2020 is annexed hereto and marked as
Exhibit '2', but the request for amendment in the GSTN
Portal by the Petitioners could not be acceded to."
10. Since one of the prayers for amendment of the Bill of
Entry of the petitioner in Writ Petition (L) No. 13894 of 2021
has been accepted by the respondents and the address
changed from Delhi to Vadodara, what remains for
34 & 32-WPL-13894 & WPL-8163-2021
consideration is the other prayer for amendment of the GSTN
ID.
11. Insofar as Writ Petition (L) No. 8163 of 2021 is concerned,
we are called upon to examine the legality of the impugned
order dated December 18, 2018 in the light of section 149 of
the Act and its interpretation by this Court and the other Courts
in the decisions referred to above.
12. For facility of convenience, section 149 of the Act, as
amended by the Finance Act of 2021, reads as follows:
"149. Amendment of documents. -
Save as otherwise provided in sections 30 and 41, the
proper officer may, in his discretion, authorise any
document, after it has been presented in the custom
house to be amended in such form and manner, within
such time, subject to such restrictions and conditions, as
may be prescribed.
Provided that no amendment of a bill of entry or a
shipping bill or bill of export shall be so authorised to be
amended after the imported goods have been cleared for
home consumption or deposited in a warehouse, or the
export goods have been exported, except on the basis of
documentary evidence which was in existence at the time
the goods were cleared, deposited or exported, as the
case may be.
Provided further that such authorisation or amendment
may also be done electronically through the customs
automated system on the basis of risk evaluation through
appropriate selection criteria.
34 & 32-WPL-13894 & WPL-8163-2021
Provided also that such amendments, as may be specified
by the Board, may be done by the importer or exporter
on the common portal."
13. The second and third provisos have been incorporated in
section 149 by way of amendment; however, such amendments
do not have the effect of stultifying the prayers made by the
respective petitioners. The decision in Micromax Informatics
Ltd. (supra), with due respect, proceeds to read the only
proviso to section 149 (as it then stood) in a constricted manner
as if the words "except on the basis of documentary evidence
which was in existence at the time the goods were cleared,
deposited or exported, as the case may be" are not there in
such proviso. However, it could be so that the interpretation
placed by the Court on the first proviso is correct for the
purpose of determination of the issue arising for decision
therein, i.e., rejection of the petitioner's refund claims for the
period between July 2014 and June 2015. We, therefore, hold
that such interpretation of section 149 as made by the
coordinate Bench turns on the facts and circumstances of the
case before it.
14. In our considered opinion, the decision in Dimension
Data India Private Ltd. (supra) correctly interprets section
149 and we share the view expressed therein that amendment
to the Bill of Entry is clearly permissible even in a situation
where the goods are cleared.
15. The decision in Hindustan Unilever Limited (supra)
decided by the Madras High Court in our further considered
34 & 32-WPL-13894 & WPL-8163-2021
opinion does make pertinent observations to the effect that
measures must be put in place so that an assessee is not denied
relief in an appropriate case merely because the system does
not permit it and that till such time measures are taken to equip
the system appropriately, amendment of documents must be
considered manually.
16. As it appears from the decision in Hindustan Unilever
Limited (supra) decided by the Gujarat High Court, counsel
appearing for the respondents had submitted that they would
have no objection if the request of the petitioner to amend the
GST details in the Bills of Entry was directed to be considered
afresh after giving the petitioner opportunity to prove its
documents qua the amendment sought in the light of section
149 of the Act. Since the petitioner in Writ Petition (L) No. 8163
of 2021 was the same petitioner before the Gujarat High Court,
we may accept the statement of Mr. Paranjape that the order
dated June 23, 2021 has since been complied with. What is of
importance in this regard is that the respondents before the
Gujarat High Court did not raise the argument that amendment
in the Bill of Entry is not permissible in terms of section 149 of
the Act. We cannot allow the same set of respondents to
prevaricate and take divergent stands before different High
Courts.
17. Although the opening words of section 149 say that, "save
as otherwise provided in sections 30 and 41", it has not been
demonstrated before us that such other provisions in the Act
do stand in the way of the respective petitioners' prayers for
amendment; also that, the amendments sought for by them
34 & 32-WPL-13894 & WPL-8163-2021
cannot be allowed because such amendment is requested on
the basis of documentary evidence which were not in existence
at the time of clearance of the goods. Given such situation,
coupled with the fact that the petitioners had prayed for
amendment of documents only, which is squarely covered
under section 149 of the Act, any deficiency in the system
cannot be used by the respondents as a shield so as to deny
relief to a party; if indeed the system does not permit, the
deficiency has to be covered up manually until improvements
are effected in the system for such amendment. We also record
not having been shown from the reply-affidavit that even a
manual amendment is not possible.
18. The grounds for not allowing amendments are clearly
untenable and hence, judicial interdiction for securing justice in
the present cases is considered necessary.
19. We grant an order in terms of prayer (a) in Writ Petition
(L) No. 8163 of 2021. We also partially allow Writ Petition (L)
No. 13894 of 2021. Writ Petition (L) No. 8163 of 2021 as well
as Writ Petition (L) No. 13894 of 2021 are disposed of by
directing the concerned respondent to consider the applications
for amendment of the documents of the respective petitioners
in the light of the observations made hereinabove as well as in
accordance with law, upon granting the authorized
representative of the petitioners an opportunity of hearing, as
early as possible but not later than four weeks of receipt of a
copy of this order. Should the concerned respondent refuse to
grant the prayer for amendment, it is needless to observe that
a reasoned order shall be passed and communicated to the
34 & 32-WPL-13894 & WPL-8163-2021
petitioners. On the contrary, if the prayer for amendment is
granted, follow-up steps shall be taken without any delay.
20. All other contentions on merits of the rival claims are left
open.
21. No costs.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2021.09.17
17:12:47
+0530
