AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 588
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..... 2. It transpires from the records that the Appellant had been exporting Gold Jewellery and Gold Medallion during the period from 20 March, 2013 to 28 November, 2014. The Appellant did not make a declaration in the shipping bills regarding its intention to claim refund of service tax in terms of paragraph 2 of the notification dated 29 June, 2019 that gave an option to claim rebate of service tax paid on the taxable services by way of refund of service tax either under paragraph 2 or under paragraph 3 of the said notification. It is for this reason that the Appellant sought an amendment in the 31 shipping bills for stating therein that it should be granted rebate by way of refund of service tax paid on the specified services in terms of paragraph 2 of the notification. 3. The Adjudicating Authority rejected the request made by the Appellant for making amendment in the shipping bills on the ground that the Appellant had failed to provide any documentary evidence, as was required under section 149 of the Customs Act. The relevant portion of the order dated 3 July, 2017 passed by the Assistant Commissioner rejecting the request of the Appellant is reproduced below:- "2....
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....The relevant portion of the order dated 6 June, 2019 passed by the Commissioner (Appeals) is reproduced below: "5.6 To avail option of rebate of Service Tax as per Para 2 of Notification, it is clearly stipulated that the exporter SHALL makes a declaration in the electronic Shipping Bills or Bill of Export, while presenting the same to the proper officer of Customs. Besides, rebate is to be granted for Service Tax paid on the specified services, as a percentage of FOB value of exports goods. It signifies that the exporter is to establish that it has received the services, paid the Service Tax on such services and used the said services in export of goods. Then only rebate is allowable. The opening paragraph of Notification also mentions ".....................hereby grants rebate of Service Tax paid on the taxable services received by an exporter of goods and used for export of goods................". Thus, documentary evidence about receiving, using of services and Service Tax paid on such services is a pre-condition to grant rebate. Clause 2(d) (iii) also lays down that conditions of the Notification have to be fulfilled. 5.7 In the application dated 14.3.2017, t....
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....ved and used for export of the shipment covered under each of Shipping Bills and other relevant information in prescribed proforma. As discussed in the foregoing Paras, and without documentary evidence it could not be established that the appellant is entitled to take benefit of Service Tax Rebate under Para 2 of the Notification No. 41/2012-ST dated 29.06.2012. 5.11 The appellant submitted written submissions during Personal hearing on 22.02.2018, wherein it is claimed that the appellant, having paid service tax on the various services used for expert of gold jewellery and medallions were eligible for refund of Service Tax @ 0.06%, of FOB value of exports in terms of Para 2 of Notification No. 41/2012-ST and Circular dated 16.12.2011. A copy of representative Bill was submitted. But no documentary evidence for Service Tax payment on services was submitted. 5.12 Thus, it is evident that the appellant have failed to submit any documentary evidence to establish their claim that they had paid Service Tax on services received and used for export of goods. It is pertinent to mention that, the Notification no. 41/2012-ST was issued to grant Service Tax Refund or rebate ....
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....pping bill or bill of export shall be so authorised 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." 10. It would thus be seen that the proper officer may in his discretion, authorize any document, after it has been presented in the custom house to be amended. However, no amendment of a shipping bill shall be so authorized to be amended after the export goods have exported, except on the basis of documentary evidence which was in existences at the time when the goods were exported. The Appellant had come out with a categorical case that evidence/information contemplated under paragraph 2 of the time notification dated 29 June, 2012 was in existence at the relevant time and in fact had been submitted by the Appellant with the shipping bills at the time the goods were exported. The Appellant desired the amendment to claim rebate of service tax paid by way of refund under paragraph 2 of the notification dated 29 June, 2012. 11. It would, ....
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....declaration in the electronic shipping bill or bill of export, as the case may be, while presenting the same to the proper officer of customs, to the effect that-- (i) the rebate of service tax paid on the specified services is claimed as a percentage of the declared Free On Board(FOB) value of the said goods, on the basis of rate specified in the Schedule; (ii) no further rebate shall be claimed in respect of the specified services, under procedure specified in paragraph 3 or in any other manner, including on the ground that the rebate obtained is less than the service tax paid on the specified services; (iii) conditions of the notification have been fulfilled; (e) service tax paid on the specified services eligible for rebate under this notification, shall be calculated by applying the rate prescribed for goods of a class or description, in the Schedule, as a percentage of the FOB value of the said goods; (f) amount so calculated as rebate shall be deposited in the bank account of the exporter; (g) shipping bill or bill of export on which rebate has been claimed on the basis of rate specified in the Schedule, by way of procedu....
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.... (emphasis supplied) 12. A perusal of the aforesaid notification dated 29 June, 2012 clearly indicates that the Central Government had granted rebate of service tax on the taxable service received by the exporter of goods and used for export of goods subject to the extent and manner specified in the notification. The notification provides that the rebate shall be granted by way of refund of service tax and that the rebate shall be claimed either on the basis of the rates specified in the Schedule of rates as per the procedure specified in paragraph 2 of the notification or on the basis of documents as per the procedure specified in paragraph 3 of the notification. 13. The procedures provided for in paragraph 2 and paragraph 3 of the aforesaid notification are different. Under paragraph 2, rebate is claimed on the basis of the rates mentioned in the Schedule, while in paragraph 3 rebate is claimed on the basis of documents to be produced. In the instant case the Appellant had sought amendment in the shipping bills by claiming rebate on the basis of rates specified in the Schedule as provided for in paragraph 2 of the notification and not on the basis of paragraph 3 of the not....
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....s of paragraph 2 of the notification and paragraph 3 of the notification. The documents which the Commissioner (Appeals) sought from the Appellant are in relation to the requirements of paragraph 3 of the notification and in fact even the information sought in the format is a format contemplated in paragraph 3 of the notification. Paragraph 2 of the notification required a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the notification. The appellant had not indicated the said declaration and it is this declaration that was sought to be submitted in the shipping bills through the amendment sought by the Appellant. Neither the Adjudicating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. For applicability of section 149 of the Customs Act relating to amendment of documents, all that has to be seen is that documentary evidence should have been in existence at the time the goods were exported. There is no document which was not in existence at the time the goods were exported for the simple reason that al....
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.... Court is reproduced below: "After hearing learned counsel for the parties, we are convinced that what was sought was the ameindment of documents only and would squarely be covered under Section 149 of the Customs Act, 1962." 20. In Mohit Overseas Vs. Commissioner of Customs 2016 (335) ELT 18 (Del.), the observation of the Delhi High Court on section 149 of the Customs Act are as follows: "3. We have heard the learned counsel for the parties. We are of the view that what the petitioner is seeking is an amendment of the Bill of Entry which is permissible under Section 149 of the Customs Act, 1962 even after the goods have been cleared for home consumption provided the said amendment is based on documentary evidence which was in existence at the time when the goods were cleared. According to the learned counsel for the petitioner, the said notification was in existence at that point of time. Consequently, we are of the view that this is a clear case where the petitioner could avail of the provisions of Section 149 of the Customs Act, 1962 and we, therefore, direct him to move an application before the proper officer seeking amendment of the Bill of Entry in terms....