2025 (11) TMI 1815 - AT - Customs

CESTAT permits shipping bill amendment under s.149, enabling service tax refund on export-related input services

M/s. Nissan Motor India Private Limited Versus Commissioner of Customs, Chennai

CESTAT Chennai allowed the appeal and set aside the impugned order rejecting the request to amend shipping bills. The Tribunal held that, under s.149 of ... Refund of service tax paid on the specified services, being claimed as a percentage of the FOB value of goods exported - rejections to amend the Shipping Bills to reflect the declaration by the Appellant - HELD THAT:- Reference made to the Hon'ble Madras High Court in the case of M/s. Pasha International v. The Commissioner of Customs [2019 (2) TMI 1187 - MADRAS HIGH COURT], in the context of Merchandise Exports scheme has held that 'the second respondent can be directed to issue N.O.C. to enable the petitioner to avail the benefit from the third respondent.' The reliance placed on the decision in the case of JK Tyre and Industries, [2024 (8) TMI 1220 - CESTAT CHENNAI], it is observed that the said decision of this Tribunal was rendered in the context of a case where the appellant therein had preferred an application for conversion of shipping bills under NFEI Scheme to drawback scheme and for consequent duty drawback under the provisions of Section 74 of the Customs Act, 1962 read with Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Whereas in the present case, the dispute is on a narrower compass in so far as there is only a request for amending the said shipping bills to obtain input services credit - the proper officer may allow in his discretion amendment of any document after it has been presented before the Customs if there is documentary evidence which was in existence at the time of clearance of the goods. In this case, the appellant has argued that the N/N. 52/2011-ST dated 30.12.2011 was existing when Shipping Bills were filed during the period April 2012 for export of motor cars through Chennai / Ennore Port. The avowed policy of the Government of India is not to export taxes and to promote exports. The Authority has not detailed any reasons for not allowing the amendment of the Shipping Bills filed in terms of the provisions of Section 149 though necessary documentary evidence is existing in the form of N/N. 52/2011-ST dated 30.12.2011. The impugned order is not sustainable and ordered to be set aside - appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether Customs authorities were justified in refusing post-export amendment of shipping bills to incorporate the declaration of intent to claim refund of service tax under Notification No. 52/2011-ST dated 30.12.2011. 1.2 Whether omission to make the required declaration in shipping bills under Notification No. 52/2011-ST is a mere procedural lapse curable through amendment under Section 149 of the Customs Act, 1962. 1.3 Whether reliance on a prior Tribunal decision involving conversion of shipping bills for drawback under Section 74 of the Customs Act was applicable to the present dispute regarding amendment for service tax refund purposes. 2. ISSUE-WISE DETAILED ANALYSIS 2.1 Refusal of post-export amendment of shipping bills to include declaration for refund under Notification No. 52/2011-ST Legal framework 2.1.1 The judgment considers the requirement under Notification No. 52/2011-ST dated 30.12.2011 that the exporter make a declaration in the shipping bill stating that refund of service tax on specified services is being claimed as a percentage of FOB value of exported goods and that no further refund for such services shall be claimed under the prescribed procedure in para 3 of the notification. 2.1.2 Section 149 of the Customs Act, 1962 as it stood during the relevant period is reproduced and examined. It empowers the proper officer, in his discretion, to authorize amendment of any document presented in the custom house, including shipping bills, even after export of goods, provided such amendment is based on documentary evidence in existence at the time the goods were exported. Interpretation and reasoning 2.1.3 The Tribunal notes that the exporter failed to make the required declaration in the shipping bills at the time of export but subsequently sought amendment to declare the intention to claim refund of service tax under the notification. 2.1.4 It is observed that Notification No. 52/2011-ST was in existence at the time of filing of the shipping bills and export of motor cars, and thus constituted relevant documentary evidence existing at the material time for purposes of Section 149. 2.1.5 The Tribunal finds that Section 149 expressly permits amendment of shipping bills post-export, subject to the condition regarding contemporaneous documentary evidence, and vests discretion in the proper officer to allow such amendment. 2.1.6 The Tribunal holds that the rejection by the authorities was solely on the ground that the declaration was not made at the time of filing the shipping bills and that amendment cannot be allowed after completion of export, without addressing or applying the statutory discretion under Section 149 in light of existing documentary evidence. 2.1.7 The Tribunal notes that the authorities did not set out any reasons for refusing amendment under Section 149 despite the existence of the relevant notification and the undisputed fact of exports having been made. 2.1.8 The judgment also refers to the general policy of the Government of India not to export taxes and to promote exports, treating this policy consideration as supporting a liberal approach where only procedural non-compliance is involved and substantive conditions are met. Conclusions 2.1.9 The Tribunal concludes that Customs authorities were not justified in rejecting the request for amendment of the shipping bills to incorporate the declaration for claiming refund under Notification No. 52/2011-ST. 2.1.10 The impugned order upholding such rejection is held to be unsustainable and is set aside, with the appeal allowed and consequential relief directed in accordance with law. 2.2 Nature of omission to declare intent to claim benefit under Notification No. 52/2011-ST and its curability under Section 149 Legal framework 2.2.1 The Tribunal analyses Section 149 of the Customs Act, 1962, emphasizing that amendment of a shipping bill after export is permissible if based on documentary evidence existing at the time of export. Interpretation and reasoning 2.2.2 The Tribunal accepts the appellant's contention that failure to make the declaration in the shipping bill is a procedural lapse and not a substantive bar to entitlement, particularly when exports themselves are undisputed. 2.2.3 By referring to the decision of the High Court in a case concerning the Merchandise Exports from India Scheme, the Tribunal notes that similar non-declaration or inadvertent error (choosing 'No' instead of 'Yes' while filling shipping bills) was treated as a curable procedural mistake, and directions were issued to enable the exporter to obtain the intended incentive through amendment or issuance of a No Objection Certificate. 2.2.4 The Tribunal relies on the reasoning that an exporter should not suffer denial of benefits solely due to inadvertent procedural errors when the underlying eligibility and contemporaneous documentary basis exist. 2.2.5 It distinguishes the present situation as one involving only a request to amend shipping bills to enable refund of service tax on input services, without any change in the nature of exports or conversion from one export scheme to another. Conclusions 2.2.6 The omission to make the declaration required under Notification No. 52/2011-ST is held to be a procedural irregularity that can be rectified by amendment of shipping bills under Section 149, based on notification and contemporaneous records existing at the time of export. 2.2.7 The Tribunal holds that such procedural lapse cannot, by itself, justify denial of the benefit of refund where substantive conditions are otherwise satisfied. 2.3 Applicability of prior Tribunal decision concerning conversion of shipping bills for drawback (Section 74) to present dispute on amendment for service tax refund Legal framework 2.3.1 The Revenue relied on a Tribunal decision where an exporter had sought conversion of shipping bills from one scheme to another (NFEI Scheme to drawback scheme) and consequential duty drawback under Section 74 of the Customs Act, 1962 read with the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Interpretation and reasoning 2.3.2 The Tribunal notes that the earlier decision dealt with conversion of the nature of shipping bills and change of export scheme entitlement, governed by specific statutory and rule-based conditions for drawback. 2.3.3 In contrast, the Tribunal characterizes the present dispute as being on a 'narrower compass,' involving only the amendment of already-filed shipping bills to facilitate grant of refund of service tax on input services, without seeking conversion from one export incentive scheme to another. 2.3.4 On this basis, the Tribunal finds the factual and legal matrix of the cited decision distinguishable and not determinative of the present controversy. Conclusions 2.3.5 The Tribunal holds that the prior decision relied on by the Revenue concerning conversion of shipping bills for drawback under Section 74 is inapplicable to the present case, and does not preclude allowing post-export amendment of shipping bills for claiming service tax refund under Notification No. 52/2011-ST.