COMMON ORDER

By this common order, both these writ petitions are being disposed of.

2. In W.P.No.9578 of 2022, the writ petition has been filed to implement the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) vide Final Order No.40760/2015 dated

29.05.2015. Relevant portion of the order reads as under:

5. The learned AR appearing for the Revenue while supporting the orders passed by the lower authorities submits that Section 149 will not be attracted in view of the assessment order having become final, no claim for refund could have been entertained.

6. We have carefully considered the submissions made by both the sides and perused the relevant records. This Tribunal has in a plethora of decisions directed the Department to amend the Bills of Entry in terms of Section 149 of the Customs Act, 1962 based on documents which were in existence at the time of import and thereafter to cause re- assessment. In the instant case, the appellant is claiming amendment and consequent re-assessment of the bill of entry since the notification No 119/2008 dated 31.10.2008 was in existence at the time of filing of bill of entry.

7. Section 149 and Section 154 of Customs Act, 1962 are reproduced below:-

"SECTION 149: Amendment of documents Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the custom house to be amended:

Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized 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.

SECTION 154: Correction of clerical errors, etc.

Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be."

8. From the above, it can be seen that as far as Section 149 is concerned, amendment is to be allowed on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported. The only restriction is Sections 30 and 41 of Customs Act, 1962 which relates to export and import manifest which are not allowed to be amended of when there is a fraudulent intention. In the case of amended document under Section 149, the amendment has to be allowed when a request is based on documentary evidence, which was in existence at the time of clearance of the goods. We also find that the decision of Hon'ble High Court of Mumbai in Hero Cycles Ltd. Vs. Union of India (supra) relied upon by Id. Counsel is relevant and the relevant paragraphs 8 & 9 are reproduced below:

8. In the instant case, the Petitioners admittedly, based on the sald notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the Imports in question. In other words, both the parties were aware of the said notifications. If the Petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in denial of the benefit. In our opinion that by itself would not be answer as a duty is cast on the authority to assess the goods and impose duty according to law which includes a statutory notification, if duty cannot be demanded if otherwise not payable. Once there be a power to assess there is a corresponding duty to assess according to law. The fact that the Petitioner has paid the duty under mistake of law and or in the instant case by oversight, cannot result in being assessed to duty which was otherwise not payable. In our opinio