2023 (8) TMI 1243 - AT - Customs

Tribunal overturns order for procedural fairness violation, emphasizes statutory provisions over circulars.

M/s Yash Pakka Ltd. Versus Commissioner of Customs (Preventive), Lucknow

The Tribunal set aside the impugned order due to a violation of natural justice principles, remanding the matter for reconsideration by the Commissioner. ... Violation of principles of natural justice - Denial of request of conversion of free shipping bills into drawback shipping bills - request rejected without affording any opportunity for hearing to the appellant - HELD THAT:- Proviso to Section 149 of CA, clearly provides that conversion of the shipping bill subsequent to exportation of the goods can be permitted on the basis of documents that were in existence at the time of exportation of the goods - From the impugned order it is evident that the Commissioner has been guided by the delay in filing the request under section 149 to reject the same. Section 149 do not provide for any time limit for making the request for conversion. In a similar case of M/S. AUTOTECH INDUSTRIES (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS CHENNAI IV COMMISSIONERATE [2021 (11) TMI 518 - CESTAT CHENNAI] tribunal while permitting the conversion has negated all the grounds stated by Commissioner in his order for not allowing the conversion and it was held that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper. The impugned order cannot be agreed upon, which has been made without even hearing the appellant or without affording any opportunity of hearing to the appellant. Appellant should have been granted opportunity to establish that claim in terms of proviso to Section 149. The impugned order rejecting the request made is hit by the violation of principles of natural justice. The impugned order set aside - impugned order rejecting the request made is hit by the violation of principles of natural justice - matter remanded back to Commissioner for re-consideration of this request made under Section 149 after affording proper opportunity to the appellant for presenting their case. Issues Involved:1. Violation of Principles of Natural Justice.2. Delay in Filing the Request for Conversion.3. Applicability of Section 149 of the Customs Act, 1962.4. Board Circular No. 36/2010 and Time Limit for Conversion Requests.Summary:Violation of Principles of Natural Justice:The appellant argued that the impugned order was passed without affording any opportunity for a personal hearing, violating the principles of natural justice. The Tribunal noted that the Commissioner had rejected the request for conversion of free shipping bills to drawback shipping bills without allowing the appellant to explain their case. This procedural lapse rendered the order unsustainable.Delay in Filing the Request for Conversion:The Commissioner rejected the request for conversion on the grounds of significant delay (more than three years) and found the appellant's reason for the delay, i.e., ambiguity in GST laws, unconvincing. The Tribunal observed that Section 149 of the Customs Act does not prescribe any time limit for making such a request. It cited the case of Autotech Industries (India) Pvt. Ltd., where it was held that the delay should not be the sole ground for rejection if documentary evidence existed at the time of export.Applicability of Section 149 of the Customs Act, 1962:Section 149 allows for the amendment of shipping bills based on documentary evidence existing at the time of export. The Tribunal emphasized that the Commissioner had erred by focusing on the delay rather than the availability of documentary evidence. The Tribunal cited various cases, including Hewlett Packard Enterprises and Global Calcium Pvt. Ltd., to support the view that amendments can be made post-export if the necessary documents were in existence at the time of export.Board Circular No. 36/2010 and Time Limit for Conversion Requests:The Tribunal noted that Board Circular No. 36/2010 prescribes a three-month time limit for conversion requests, but this cannot override the provisions of Section 149, which does not stipulate any time limit. The Tribunal referenced multiple judgments, including Parayil Food Products Pvt. Ltd. and Carboline India Pvt. Ltd., which held that the statute prevails over the circular. The Tribunal concluded that the circular could not be used to deny the conversion request based on the time limit.Conclusion:The Tribunal set aside the impugned order for violating the principles of natural justice and remanded the matter back to the Commissioner for reconsideration. The Commissioner was directed to allow the appellant an opportunity to present their case and to decide the matter within three months. The Tribunal did not delve into the merits but emphasized the need for procedural fairness and adherence to statutory provisions over circulars.