TaxTMI 
TaxTMI 
2008 (1) TMI 166
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....l user condition against the export of optical fibers manufactured by the appellant. 3.2 The appellant was exporting the product specified, namely, the optical fibers, under Shipping Bills for Advance Licence and was also requesting the DGFT to modify the terms for fixation of the norms for import of fuel under the scheme. Incidentally, no import was carried out by the appellant. 3.3 By letter dated 20.09.2006, the appellant made representation to Central Government to permit the conversion of Shipping Bills to Drawback Shipping Bills. By letter bearing F.No. 609/272/2006-DBK dated 18.10.2006, Central Board of Excise & Customs, referred the matter to the Commissioner of Customs, Air Cargo Complex, for considering the....
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....the order was not passed by the Commissioner as adjudicating authority. This argument flatly falls when the definition for the adjudicating authority as given in Section 2(1) reads as "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, [Commissioner (Appeals)] or Appellate Tribunal;". It appears that the Revenue is struck with its ill-found theory of only such orders involving confiscation and levy of penalty could be considered to have been passed in the capacity of adjudicating authority. 5.3 Yet another objection of the Revenue was that the impugned order was not covered by the provisions of Section 129A to be taken up by the Tribunal as an ap....
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.... agitate against any portion of the impugned order. When the Revenue is fully defending the impugned order, the hue and cry about the opportunity for filing a memorandum of cross objection is misplaced. 7. Revenue cited the non-mentioning of the provisions of the Foreign Trade Policy and the Handbook of Procedure as one of the reasons for the rejection. Para 4.12.2 of the Handbook of Procedures states that " Conversion of duty free shipping bills to drawback shipping bills may also be permitted by customs authorities in case application for an Advance Authorisation is rejected or modified by RA." This provision, which includes the modification also as one of the reasons in addition to the rejection, has been mentioned b....
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....o amendment of a bill of entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." It is not in dispute that the requirements of abovementioned proviso are satisfied by the appellant and consequently Commissioner ought to have allowed the request for conversion in stead of "bound" by the terms of a Board circular which laid down certain situations, only in which conversion was permitted. That the appellants case was not specifically covered ....
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....d to ignore the tenor of these circulars. 10. The submission of the Revenue that the authorities are given the discretion by law smacks of arrogance. Law, on no count allows any authority to pass unreasoned orders, to communicate it through a simple letter and to later on argue that it was not an appellable order that too depriving the assessee, his legitimate right. The Commissioner ought to have taken up the issue in the right earnest, at least in such a case where the Board referred the matter to him by communicating on the issue. 11. Coming to the issue of the merits of the case, I find that the goods were exported under DEEC shipping bills and the examination norms and the scrutiny of the documents were not in a....