2023 (10) TMI 437 - AT - Customs

Appeal Approved: Shipping Bills Converted from DFIA to Drawback Scheme Due to DGFT Delays and Lack of Reasons.

The Tribunal allowed the appeal, directing the conversion of shipping bills from the DFIA scheme to the Drawback Scheme. It found the Commissioner's ... Denial of Export Benefits - Disallowance of request for conversion of shipping bills from Duty Free Import Authorisation scheme (DFIA) to Drawback Scheme - denial without any reasoned order through the impugned order - violation of principles of natural justice - HELD THAT:- It is stated position that despite vigorous follow up with the office of Joint DGFT, Rajkot for cancellation, the same has not met with any response and is pending till date. Therefore, being in denial of any of the benefit, the appellants approached for amendment of Shipping Bills to claim draw back benefit which has been denied to them without affording any opportunity or reasons for denial of the claim even by the Customs. The appellants, therefore, have made various detailed submissions including on the validity of CBEC No. 36/2010-Cus. dated 23.09.2010 for indicating that the 3 months period prescribed in the same has been struck down by the Hon’ble Gujarat High Court in the matter of THE PRINCIPAL COMMISSIONER OF CUSTOMS, MUNDRA VERSUS M/S LYKIS LIMITED [2021 (2) TMI 261 - GUJARAT HIGH COURT] which has been reiterated by the Hon’ble Bombay High Court in COLOSSUSTEX PRIVATE LIMITED AND TODI RAYONS PRIVATE LIMITED VERSUS UNION OF INDIA, THE CENTRAL BOARD OF EXCISE AND CUSTOM, THE DEPUTY COMMISSIONER OF CUSTOM, MAHARASHTRA, THE COMMISSIONER OF CUSTOM NS-II, THE ASSISTANT COMMISSIONER OF CUSTOMS NS-II, RAIGAD, [2023 (9) TMI 313 - BOMBAY HIGH COURT]. In which Hon’ble High Court of Bombay has also struck down the limitation of 3 months from the let export order in aforementioned circular. With the point of emphasis of the appellants being that the amendment should have been allowed in the shipping bill to them from DFIA Scheme to Drawback as claimed by them and the denial of the same through amendment or otherwise as export benefit was totally unfair and not maintainable. It is grievance of the the appellants that Commissioner not having given any detailed rejection order, they are probing in dark for reasons as could have prevailed with the department in denying them the export benefit - It is found that since, October, 2015 despite doing exports in the year 2013-2014 and having applied for cancellation of DFIA. They have been in denial of the benefit both by the joint DGFT authority as well as Customs authorities due to lack of response or lack of proper response. Left in a limbo, appellant have filed present appeal against letter of rejection considering the same as appealable as they are aggrieved by the same - such denial of export benefit even when export has taken place is not worthy of approval. Appellant thus having waited for long for cancellation correctly applied for conversion to Customs authorities. However, denial of export benefit despite delay and non response by the DGFT authorities makes the rejection letter of Commissioner improper - the rejection letter quashed aside and lower authorities are directed to convert DFIA Shipping Bills to Drawback Shipping Bills as are involved in the present appeal. The amendment of impugned Shipping Bills by the Commissioner allowed, while doing so and in the absence of any cancellation being on record which was indicated in VRA Cotton Mills Pvt. Ltd. Case, the Commissioner are directed to follow Course indicated in para-5 of Board’s Circular No. 36/2010-Cust dated 23.09.2010 and ensure that exporter does not take benefit of both schemes and also inform the DGFT authorities that in view of non-response to the cancellation request, same is deemed to have been granted. Appeal is therefore, allowed directing Customs authorities to allow conversion and consider Drawback claim in above terms. Issues Involved:1. Conversion of shipping bills from Duty Free Import Authorisation (DFIA) scheme to Drawback Scheme.2. Compliance with Section 149 of the Customs Act, 1962 and relevant CBEC Circulars.3. Procedural delays and rejections by customs and DGFT authorities.4. Legal precedents and judgments supporting the appellant's case.Summary:Issue 1: Conversion of Shipping Bills from DFIA to Drawback SchemeThe appellant, M/s. Nisan Exports, requested the conversion of 42 shipping bills from the DFIA scheme to the Drawback Scheme under Section 149 of the Customs Act, 1962. The Commissioner of Customs, Mundra, rejected this request without providing detailed reasons.Issue 2: Compliance with Section 149 of the Customs Act, 1962 and Relevant CBEC CircularsThe appellant argued that, per Section 149 of the Customs Act, 1962, and CBEC Circular No. 36/2010-Cus, the conversion should be allowed based on documentary evidence available at the time of export. The appellant highlighted that the circular allows conversion from schemes involving more rigorous examination to those involving less rigorous examination. The appellant contended that the procedural lapse of not filing within three months should be condoned as Section 149 does not specify such a period.Issue 3: Procedural Delays and Rejections by Customs and DGFT AuthoritiesThe appellant faced delays and lack of response from the Joint DGFT, Rajkot, for the cancellation of unutilized DFIA scripts, which led to the request for conversion. The Commissioner of Customs denied the conversion without a reasoned order, leaving the appellant without any export benefits despite having exported the goods.Issue 4: Legal Precedents and Judgments Supporting the Appellant's CaseThe appellant cited several legal precedents, including judgments from the Gujarat High Court and the Supreme Court, supporting the conversion of shipping bills under Section 149. Notable cases included:- PR. COMMR. OF CUSTOMS, MUNDRA vs. LYKIS LTD.: No time-limit prescribed under Section 149 for conversion.- GOKUL OVERSEAS vs. UNION OF INDIA: Procedural lapses should not deny substantive benefits.- MAN INDUSTRIES (INDIA) LTD. vs. COMMISSIONER OF CUSTOMS (EP): Statutory rights under Section 149 cannot be curtailed by circulars.Tribunal's Decision:The Tribunal found the Commissioner's rejection improper due to the lack of detailed reasons and the undue delay by the Joint DGFT. It quashed the rejection letter and directed the Customs authorities to convert the DFIA shipping bills to Drawback shipping bills. The Tribunal emphasized that the appellant should not be denied export benefits due to procedural delays and non-responsiveness from the DGFT authorities. The Tribunal also directed the Customs authorities to ensure that the appellant does not benefit from both schemes and to inform the DGFT of the deemed cancellation of DFIA scripts. The appeal was allowed, directing the Customs authorities to consider the Drawback claim per the law.Conclusion:The Tribunal allowed the appeal, directing the conversion of shipping bills from DFIA to the Drawback Scheme and emphasized the need for procedural fairness and adherence to legal precedents.