2021 (11) TMI 518 - AT - Customs

Tribunal allows conversion/amendment of shipping bills from 2012-2014, upholds rejection for 2000-2011 due to delay.

The Tribunal set aside the rejection of the request for conversion/amendment of shipping bills for the period January 2012 to December 2014, allowing the ... Rejection of request for conversion of free shipping bills to drawback shipping bills - one of the reason for rejection is that the documents at the time of exports are not available - time limitation - HELD THAT:- There is no such allegation raised in the Show Cause Notice regarding documents not available, which was issued on the basis of these letters. In the Show Cause Notice, the only ground raised is that the request for conversion is time barred. The only requirement under Sec. 149 to allow amendment is that the exporter has to produce documentary evidence which was in existence at the time of export. The department does not specifically dispute the export of goods. The appellants have furnished copies of Shipping Bills, BRC and ARE-1. These documents are sufficient to prove that goods manufactured by them using imported inputs were exported. The ARE-1 document would show that the goods have been removed from the factory for export after it has been examined / verified by the Superintendent of Central Excise - the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable. Time Limitation - HELD THAT:- It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the learned counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that section 149 of Customs Act, 1962 does not prescribe any time limit - The jurisdictional High Court in the case of MM/S. HEWLETT PACKARD ENTERPRISE INDIA PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF CUSTOMS, DEPUTY COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2020 (10) TMI 970 - MADRAS HIGH COURT] observed that the proviso in section 149 permits amendment even after clearance for home consumption, if contemporaneous documents to establish the export are supplied by assessee. In the said case, the writ petitioner imported goods during the period 24.7.2019 to 26.7.2019 by filing 17 bills of entry. The invoices contained an error while mentioning the unit price of the imported products which came to be perpetrated in the Bill of Entry as well. The Customs Act, 1962 being a special law and a complete code in itself it would not be proper to pull in the limitation period under the Limitation Act, 1963 and make it applicable to section 149. More so, because section 149 does not deal with any recovery of duty or refund of duty. It is a section merely to permit amendment in documents. Amendment is purely a procedural requirement. The legislature in its wisdom has not prescribed either in the Act or Rules a time limit to fulfill this procedural requirement - We are unable to refrain ourselves from being not persuaded by these provisions in the Limitation Act to hold that a period of three years would be a reasonable time for filing an application under section 149. The application dated 9.10.2015 contains request for amendment of Shipping Bills for the year 2012 to 2014. It gives details of shipping bills for three years (Jan. 2012 to Dec. 2014) - the rejection of the request for conversion / amendment of Shipping Bills vide letter dated 9.10.2015 (for the period Jan. 2012 to Dec. 2014) is to be set aside - appeal allowed in part. Issues Involved:1. Rejection of request for conversion of free shipping bills to drawback shipping bills.2. Barred by limitation as per CBEC Circular No. 36/2010-Cus.3. Availability of documents at the time of export.4. Legal provisions under Section 149 of the Customs Act, 1962 and Rule 12 of Drawback Rules, 1995.5. Reasonability of delay in filing the request for conversion.Issue-wise Detailed Analysis:1. Rejection of Request for Conversion:The appellant requested the conversion of free shipping bills to drawback shipping bills, which was rejected by the Commissioner of Customs. The rejection was based on the grounds that the request was barred by limitation, the reason for omission was unsatisfactory, and the documents available at the time of export were not provided.2. Barred by Limitation:The appellant's request was considered time-barred according to CBEC Circular No. 36/2010-Cus, which stipulates a three-month period from the date of the Let Export Order (LEO) for such requests. The appellant argued that neither Section 149 of the Customs Act, 1962 nor Rule 12(1)(a) of the Duty Drawback Rules provides for any time limit, indicating that the legislature did not intend to restrict the amendment of shipping bills by time.3. Availability of Documents:The appellant submitted that they had provided all necessary documents, including shipping bills, ARE-1 forms, and Bank Realization Certificates (BRCs). The Tribunal noted that the Show Cause Notice did not raise the issue of the absence of documents but focused on the time-barred nature of the request. The Tribunal held that the requirement under Section 149 is to produce documentary evidence in existence at the time of export, which the appellant had done.4. Legal Provisions under Section 149 and Rule 12:Section 149 allows for the amendment of shipping bills based on documentary evidence existing at the time of export. Rule 12(1)(a) of the Drawback Rules requires a declaration at the time of export, but the Commissioner has the discretion to exempt this requirement if the failure was due to reasons beyond the control of the exporter. The Tribunal emphasized that Section 149 does not prescribe a time limit for amendments and that the Board Circular cannot override the statutory provisions.5. Reasonability of Delay:The Tribunal acknowledged that while no specific time limit is prescribed under Section 149, requests for amendments should be made within a reasonable time. The Tribunal found that the appellant's request for shipping bills from 2000 to 2011 was unreasonably delayed, but the request for the period from 2012 to 2014 was within a reasonable time frame.Judgment:1. The rejection of the request for conversion/amendment of shipping bills for the period January 2012 to December 2014 was set aside, allowing the conversion with consequential reliefs.2. The rejection of the request for conversion/amendment of shipping bills for the period 2000 to 2011 was upheld due to unreasonable delay.The appeal was partly allowed, modifying the impugned order accordingly.