Case Note & Summary
The petitioners, Colossustex Private Limited and Todi Rayons Private Limited, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an order dated 29 December 2021 passed by the Assistant Commissioner of Customs, Nhava Sheva, rejecting their application for amendment of shipping bills. The petitioners had exported goods and sought to amend the shipping bills to correct the description of the goods. The Assistant Commissioner rejected the application relying on paragraph 3(a) of Circular No.36/2010-Customs dated 23 September 2010, which prohibits amendment of shipping bills after export. The petitioners contended that Section 149 of the Customs Act, 1962 permits amendment of shipping bills at any time before or after clearance for export, and the circular restriction is ultra vires the section and also violative of Articles 14 and 19(1)(g) of the Constitution. The respondents argued that the circular was valid and the amendment could not be allowed after export. The Court examined Section 149 of the Customs Act, 1962, which provides that the proper officer may, on application, amend any shipping bill or bill of export after clearance for export if he is satisfied that the amendment is not contrary to any provision of the Act. The Court noted that the section does not impose any time bar for amendment after export. The Court held that paragraph 3(a) of Circular No.36/2010-Customs, which restricts amendment after export, is ultra vires Section 149 of the Customs Act, 1962, as a circular cannot override a statutory provision. The Court also held that the circular restriction is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Court quashed the impugned order dated 29 December 2021 and directed the respondents to consider the petitioners' amendment application on its own merits in accordance with Section 149 of the Customs Act, 1962. The Court also struck down paragraph 3(a) of Circular No.36/2010-Customs as ultra vires the Act.
Headnote
A) Customs Law - Amendment of Shipping Bills - Section 149 of the Customs Act, 1962 - Circular No.36/2010-Customs - The petitioners sought amendment of shipping bills after export to correct description of goods. The Assistant Commissioner rejected the application relying on para 3(a) of Circular No.36/2010-Customs which prohibits amendment after export. The Court held that Section 149 of the Customs Act, 1962 permits amendment at any time before or after clearance for export, and the circular restriction is ultra vires the section. The Court quashed the rejection order and directed the respondents to consider the amendment application on merits. (Paras 2-17) B) Constitutional Law - Ultra Vires - Article 226 of the Constitution of India - Circular No.36/2010-Customs - The Court held that a circular cannot override the statutory provision of Section 149 of the Customs Act, 1962. The restriction in para 3(a) of the circular is ultra vires the Act and therefore invalid. The Court struck down the said paragraph as being contrary to the statute. (Paras 10-17)
Issue of Consideration
Whether paragraph 3(a) of Circular No.36/2010-Customs dated 23.09.2010, which restricts amendment of shipping bills after export, is ultra vires Section 149 of the Customs Act, 1962 and Articles 14 and 19(1)(g) of the Constitution of India.
Final Decision
The Court allowed the petition. It quashed the order dated 29.12.2021 and struck down paragraph 3(a) of Circular No.36/2010-Customs as ultra vires Section 149 of the Customs Act, 1962. The Court directed the respondents to consider the petitioners' amendment application on its own merits in accordance with Section 149 of the Customs Act, 1962.
Law Points
- Section 149 of the Customs Act
- 1962 permits amendment of shipping bills at any time before or after clearance for export
- Circular No.36/2010-Customs para 3(a) restricting post-export amendment is ultra vires Section 149
- Article 226 of the Constitution of India
