2020 (1) TMI 165

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.....2007 1697536 02.03.2007 4. 1720706/ 40.05.2007 √ 05.05.2007 5. 1611199/ 28.01.2008 1811199 29.01.2008 6. 2023679/ 11.12.2009 √ 16.12.2009 7. 1671883/ 15.10.2010 √ 22.10.2010 8. 1776565/ 08.11.2010 √ 19.11.2010 9. 2275950/ 19.01.2011 √ 24.01.2011 10. 3566495/ 06.05.2011 √ 10.05.2011 11. 4503319/ 12.07.2011 √ 15.07.2011 12. 4979924/ 12.08.2011 √ 19.08.2011 13. 5585953/ 26.09.2011 √ 30.09.2011 14. 3917744/ 11.02.2013 √ 16.02.2013 2. Learned Commissioner has passed the following order; "4.1 I find that M/s Isolloyd Engineering Technologies Limited has requested to issue certificate of amendment in terms of Section 149 of the Customs Act, 1962 to get Export Obligation Discharge Certificate from the DGFT. 4.2 I observe that the amendment of shipping bills post Let Export Order under Section 149 of the Customs Act, 1962 can be allowed only on the basis of documentary evidence, which was in existence at the time of clearance of goods for export. Assistant Commissioner (Export Shed) was requested vide letter dated 26.12.2018 to provide Customs Bunch of the S....

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....lights that free shipping bills (Shipping bills not filed under any export promotion scheme) are subject to 'nil' examination norms; and therefore, conversion of free shipping bills to EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed." Being aggrieved the Appellant has filed the present appeal. 3. We have heard learned Advocate, Shri B.K. Singh on behalf of the Appellant and Shri Rakesh Kumar, learned Authorized Representative on behalf of Respondent. 4. Shri Singh took us through the documents submitted by appellant along with the appeal and at the time of hearing. His main contentions were as under: (i) Referring to the provisions of Section 149 of the Customs Act, 1962, he argued that the Section gives power to the Proper Officer to allow any document presented before the Custom House to be amended by the importer/exporter subject to the provisions of Section 30 and 41 of the Customs Act, 1962 (for short the Act). The Commissioner, being proper officer, had power to allow amendment of any document by the person who presented the document. Normally, the Bill of Entry or Shipping Bill cannot be amended after the goods hav....

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....te pleaded that, the aforementioned decisions clearly indicate that there was no time limit for amendment of the Shipping Bills but that can be done only when the amendment is sought for based on documents which were in existence at the time of filing the Shipping Bills. (iii) The learned advocate produced before us the EPCG License for import of the machinery in question. He has also produced the installation certificate which shows that the Machine was installed in the Factory, whose name appeared in the Shipping Bills, Invoices and the AREs 1 accepted by the jurisdictional Central Excise Officer. He pleaded that, all these documents, were in existence at the time of filing the Shipping Bills. In fact, those were supporting documents of the Shipping Bills. (iv) Pointing out at page 24b of the appeal Paper Book, ld. advocate submitted that in similar Circumstances, the Dy. Commissioner of Customs (NHAV SHEVA) had issued a Certificate of Amendment in respect of hipping Bills filed between 12/01/2005 to 24/11/2005 on 14/12/2016. Which clearly shows that no time limit is prescribed under section 149 of the Customs Act. (v) Explaining the scheme of Export Import Policy, ld. Advo....

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....not sufficient to support the claim of the appellant. 6. We have considered the rival contentions and perused in the appeal paper book as argued at the time of hearing. First of all, we will address the contention of the Respondent Department that the departmental officers are bound by the Circular issued by the Department. The sanctity of such Circulars was examined by the Hon'ble Supreme Court in the case of Bengal Iron Corporation Versus Commercial Tax Officer reported in 1993 (66) ELT 13 (Supreme Court). We gainfully reproduce the relevant Paragraph of the said judgments of the Hon'ble Apex Court: "18. So far as clarifications/circulars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law. There can be no estoppel against the statute. The understanding of the Government, whether in favour or against the assessee, is nothing more than its unders....