TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 145
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....ied to them as on the basis of same set of export documents the request was made as per Section 149 of the Customs Act,1962. Revenue s contention on the other hand is that it is difficult to correlate the items exported with the imported items as there was no physical examination of the goods, hence, the conversion of free shipping bills into DEPB shipping bills cannot be accepted. 4. I find that the principle relating to allowing conversion of free shipping bill into DEPB ,DFRC etc. shipping bill and from one promotion scheme to another promotion scheme has been laid down by the Hon ble Delhi High Court in the case of Terra Films Pvt. Ltd. v. C.C. 2011 (268) ELT 443 (Del.). Their Lordships after considering the Board s Circular No.4/2004 dated 16.1.2004, observed that amendment of the shipping bill after the goods have been exported, cannot be considered as mere amendment, when the request is for conversion of free shipping bills into DEPB or for conversion of shipping bills from one export scheme to another. Their Lordship observed as follows: "4. We have heard the learned counsel for the exporter and learned counsel for the Department and perused the record. From the facts as ....
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....rt documents prove the fact of export and the export product is clearly covered under relevant SION and DEPB Schedule as the case may be. d. On the basis of shipping 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 for the export promotion Scheme under which the goods were exported and no fraud/misdeclaration/manipulation/ investigation is initiated against him in respect of such exports." 5. From the above, it may be seen that as per Clause B of the circular that the conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed in routine. As regards permitting conversion of shipping bills from one export promotion scheme to another, this clause envisages that such conversion to be allowed only where the benefit of export promotion scheme claimed by the exporter has been denied by DGFT/MOC or Customs due to any dispute. However, in such a case, conversion may be permitted by the Commissioner on case-to-case basis, subject to conditions enumerated in sub-clauses (a) to (e). Even under Clause A, the request for conversi....
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....he amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. The Commissioner in the remand case has rightly observed that the present case in fact relates to the request for conversion of shipping bills from one export promotion scheme into another and was not merely of an amendment in the shipping bill. The request was made for conversion from one scheme to another after the lapse of long period of more than one year. It was a case of request for conversion and not of amendment inasmuch by converting from one scheme to another, it was not only addition of word cum duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessar....
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....s Pvt. Ltd s case, their Lordship observed as: 18. A similar issue was considered by the Division Bench of Delhi High Court in the matter of M/s. Terra Films Pvt. Ltd. v. Commissioner of Customs [2011 (268) E.L.T. 443 (Del.)]. In the above decision, the Delhi High Court has considered the scope of Section 149 of Customs Act and found that the discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house has to be though exercised judicially, it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. It is further observed therein that the request was made for conversion from one Scheme to another is a case of request for conversion and not of an amendment inasmuch as by converting from one Scheme to another, it was not only addition of certain word, but change of entire status and character of the documents. Thus, the Delhi High Court observed that the Proper Officer may not be in a possession of the documents sought to be amended particularly, when the goods already stood exported. For enabling an export....