This is to update you about Section 46(5) of the Customs Act, 1962 (‘CA 1962’) which talks about reinstatement of Ex-bond Bill of Entry (‘BE’) to In-bond BE. In simple words, an importer can get BE for Home Consumption converted back into BE for Warehousing.
Section 46(5)
·
The language of the provision is:
“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.”
·
Thus, in order to reinstate Ex-bond BE to In-bond BE,
following twin conditions must be satisfied:
(a)
Interest of revenue is not prejudicially affected; and
(b)
There was no fraudulent intent
Practical Usage of Section 46(5)
·
Section 46(5) may be used in litigation by importers, inter
alia, in following situations:
i.
Customs in not allowing In-bond BE for certain goods.
For example, at some ports, Customs officers have started holding bonding of
second-hand goods in MOOWR premises.
ii.
Where MOOWR license is not granted on frivolous
grounds and importer had no option but to file to Ex-bond BE since goods have
already arrived at port.
iii.
Where importer mistakenly files Ex-bond BE but before
clearance order decides to substitute it with In-bond BE.
| Remarks
·
Recently, Hon’ble CESTAT allowed
reinstatement of Ex-bond BE into In-bond BE in the case of Emami Agrotech
Limited v. CC, Customs Appeal No. 75759 of 2023, in certain circumstance.
·
We are also working on this route in one
peculiar MOOWR case where Department is delaying the grant of license and
importer’s goods have already arrived at port.
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