TaxTMI 
TaxTMI 
2017 (3) TMI 1012
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....Drawback) vide letter dated 07.07.2016 informed the appellant that conversion of shipping bills are not dealt by DBK Section and as per Board's Circular No. 36/2010 dated 23.09.2010, the conversion can be done within three months from the date of Let Export Order. Aggrieved by the order, appellant preferred an appeal before the first appellate authority who set aside the letter dated 07.07.2016 and remitted the matter back to the Commissioner of Customs in terms of Board's Circular No. 36/2010. Subsequently, appellant approached the Commissioner of Customs, NS II requesting for conversion of shipping bill from draw back into DFIA shipping bills, the adjudicating authority after following due process of law rejected the application. 3. Learned Sr. Advocate Shri Atul Nanda on behalf of the appellant submits that the adjudicating authority has failed to appreciate that the appellant was constrained and compelled to submit the said request for conversion of draw back shipping bills to DFIA scheme since no duty drawback benefit was granted even after more than two years; The jurisdictional Commissioner of Customs has failed to appreciate the documentary evidences produced by ....
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.... DEPB scheme and subsequent conversion to free shipping bills without hearing appellant is incorrect decision. It is his submission that the DFIA licence held by appellant during the relevant period can be utilized by appellant since the draw back is being not sanctioned. 4. Learned D.R. while reiterating the findings of the adjudicating authority submits that the Board's Circular No.36/2010 dated 23.09.2010 states that the application for conversion should be made within three months from the date of Let export order while in the case in hand it was made almost after 1^1/2 years. It is his further submission that the Hon'ble High Court of Madras in the case of CC v. Suzlon Energy Ltd. 2013 (2) ECS (28) (Mad-HC) has held conversion as per the Board's Circular dated 23.09.2010 needs appreciation of the documents which was not presented when the conversion was sought as the goods stood exported; for enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but also verification of the goods of export and their examination by Customs was necessarily required to be done which would not be possible in the case ....
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....ial of draw back, but kept under suspension for some reason, the exporter cannot belatedly seek conversion is also incorrect as the Tribunal in the case of V.R.A. Cotton Mills Pvt. Ltd. (supra) has held that there is no time limit provided by the DGFT; Section 149 of the Customs Act, 1962 permits amendment of shipping bill if the exporter has not availed or received the benefit of the export promotion scheme under which the shipping bill was filed. In that case, the Tribunal has held that appellant therein having applied for conversion after getting the cancellation of DFIA would mean that appellant had sought conversion of Export Promotion from DFIA shipping bill to drawback scheme. In the case in hand in our considered view, conversion of shipping bill from Duty drawback to DFIA Scheme needs to be allowed as appellant though had sought duty draw back were not sanctioned, entitles him to apply for conversion from duty drawback scheme to DFIA scheme. In both the schemes the level of examination by authorities of export cargo, remains the same. 5.5 In the case of Fontansey Engg. Export Pvt. Ltd. (supra), on identical issue came up before the Tribunal wherein the exporter therein ....
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.... In the case of Smruti Pottery Works (supra) the Tribunal held as under : Shipping Bill - Conversion of free Shipping Bill to DFRC Shipping Bill -Inputs mentioned in Standard Input-Output Norms and Chartered Engineer also certified use of Zirconium Silicate/Opacifier - Conversion of Shipping Bill not to be denied especially when as per Board's Circular Nos. 6/2003-Cus., dated 28-1-2003 and 40/2003-Cus., dated 12-5-2003 exporter not required to prove that he is forced to file free Shipping Bill by Customs. In the case of JSW Ltd. the Tribunal held as under : Export Promotion Scheme - Shipping bills, Conversion of - DEPB shipping bills into DFRC/Advance Licence Scheme - Exports made, provisional assessment allowed under DEPB Scheme - But the provisional assessment could not be finalised due to non-availability of DEPB Scheme at given point of time - Therefore, finalisation could have been made under DFRC Scheme which was available at that point of time - Commissioner wrongly assumed that appellants were still claiming benefit of DEPB Scheme and there is no dispute existed with customs - C.B.E.&C. Circular dated 16-1-2004 clearly indicates the availa....
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.... of the benefit claimed. (b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. (c) The examination report and other documents and other endorsements made on the Shipping Bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB Schedule as the case may be. (d) On the basis of S/Bill/export documents the exporter is fulfilling all conditions of the Export Promotion Scheme into which he is seeking conversion. (e) The exporter has not availed benefit of the export promotion Scheme under which the goods were exported and no fraud/mis-declaration/manipulation/investigation is initiated against him in respect of such exports." Ld. Commissioner has not stated the basis (if any) of his finding that the exporters did not fulfil the above conditions. Ld. Commissioner knew that his decision on the party's request would have the consequence of DEPB benefit being denied to them. He knew, he was discharging a quasi-judicial function. That is why he penned his decision after hearing the party in keeping w....
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....rce in the contentions raised by learned Counsel for the appellant that Hon'ble High Court of Kerala in the case of Leotex (supra) in para 4 has held that the Board itself had decided to liberalise the provision regarding conversion from one scheme to another, there should not be any reason to allow the same. It is also to be noted that the provisions of Section 149 of the Customs Act, 1962 does not prescribe time limit for amendment of the shipping bills hence the Board's Circular seeking restriction on time limit for conversion is going beyond the mandate of law. 5.7 As regards the decision relied upon by learned D.R. in the case of Suzlon Energy Ltd., (supra) on reading of the entire judgement it is noticed that the Hon ble High Court has in the facts of that case i.e. shipping bills were filed prior to Circular 36/2010 dated 23.09.2010, came to a conclusion that the proper officer would not be in a position to verify and change the status and correctness of the documents as it was not very clear as whether examination was done by the officer or otherwise. In the case of Terra Films Pvt. Ltd. (supra) it is recorded by the Hon'ble High Court categorically that the ....