Substitution of Bill of Entry - A Little Explored Provision

 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.