TaxTMI 
TaxTMI 
2013 (3) TMI 46
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....ication of their customer i.e., M/s.Mesto Mineral (India) Pvt. Ltd., and that they have not availed any export benefit on the above mentioned shipping bill. It is also submitted that it took a very long time for the original documents to be brought from Brazil. The said request for conversion of shipping bill from Advance Licence Scheme to DEPB Scheme was rejected by the adjudicating authority on the ground that the Circular No.36/2010-Cus., dated 23.09.2010 is not applicable. In this case, the shipping bill was filed prior to issuance of the said circular and it was also held that the request for conversion of shipping bill is to be made by the exporter within three months from the date of 'let export order' but, in this case, the request for amendment has been made after more than one year, therefore, in that circumstances the same request is hit by limitation prescribed under Circular No.36/2010-Cus.dated 23.09.2010. It is also held that as no documentary evidence has been furnished by the exporter which existed at the time of export to support the request and the fact that the request for the same has been made after one year, therefore, the request was denied. Aggrieved from t....
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....stoms Act, 1962, no time limit is prescribed, therefore, the appellants are entitled for conversion. He also submitted that the same view was taken by this Tribunal in the case of The Commissioner of Central Excise, Nhava Sheva Vs Crest Chemicals. He further submitted that the discretion under Section 149 of the Customs Act, 1972 for amendment of the shipping bill from one scheme to another is to be exercised judiciously and the same has not been done in the instant case, as the documents on the basis of which the amendment is sought are available at the time of export. Therefore, he prayed that the impugned order be set aside and conversion from Advance Licence Scheme to DEPB Scheme be allowed. He relied on the decisions of LeoTex Vs Union of India reported in 2012 (281) E.L.T.173 (Ker.), Commissioner Vs Amritsar Swadesh Textile Corpn. P. Ltd. reported in 2011 (273) E.L.T,A.87 (Kar.), Commissioner of Customs Vs Man Industries (I) Ltd. reported in 2007 (216) E.L.T.15 (Bom.), Terra Films Pvt. Ltd. Vs Commissioner of Customs, New Delhi reported in 2010 (261) E.L.T.226 (Tri.-Del.) and Suchitra Components Ltd. Vs Commissioner of Central Excise, Guntur reported in 2007 (208) E.L.T.321 (....
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....om one scheme to another and the only condition imposed is that on the basis of documentary evidence, which were available at the time when the goods were cleared/ exported, the Customs officer can amend the document. As regards limitation, learned SDR has relied on the decision of Terra films Pvt. Ltd. (supra) passed by the Hon'ble High Court of Delhi. In that case, the facts are that seven shipping bills were filed during the period Sept.'04 to Apr.'05, for amendment from 'DEEC/DEPB' to 'DEEC/DEPB-cum-Drawback Scheme', which was denied by the learned Commissioner, as the same was not in accordance with the decisions of this Tribunal in the case of M/s.Hero Cycles Ltd. Vs Commissioner of Customs, M/s.Smurti Pottery Works Vs Commissioner of Customs) Kandla reported in 2004 (163) E.L.T.184 (Tri.-Del.) and M/s.Sanghi Industries Ltd. Vs Commissioner of Customs reported in 2005 (179) E.L.T.39 (Tri.-Mumbai). The said order was challenged before this Tribunal and his Tribunal in its finding has observed that "one reason for not acceding to the request was that goods have already been exported and to cause verification to fix the brand rate under the Drawback Rules is physically impossibl....
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....that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived by the Commissioner has been rightly upheld by the CESTAT. 7. We do not see any perversity or illegality in the discretion exercised by the Commissioner in rejecting the request of the exporter of conversion/ amendment from one scheme to the other after a lapse of more than one year. There is no reason to interfere in the findings of the fact arrived at by the CESTAT. Since, there is no question of law involved, the appeal is dismissed. No orders as to costs. Ordered accordingly." 8. In the said decision as the goods have already been exported and require physical examination, for the amendment sought by the appellants, therefore, the Hon'ble High Court observed that as the shipping bills were filed beyond the one year period, as held by CESTAT in the facts of the above cited case is correct but in the instant case, there is no finding of the adjudicating authority that the documents on the basis of which amendment is sought require physical examination of the go....