TaxTMI 
TaxTMI 
2020 (12) TMI 1229
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....Customs, Nagpur issued from F No. VIII(Cus) 25- 159/Cus.Hqrs./2019,and impugned before us cites elapse of more than three months beyond the date on which 'let export order' was endorsed on the respective shipping bills as sufficing to discountenance their eligibility at the threshold. 2. From the facts set out in the appeal, as well as the narration of Learned Counsel for the appellant, it would appear that exports were being regularly effected under the 'duty-free import authorisation (DFIA)' scheme as well as under claim for drawback which, after the imposition of restrictive condition of mandatory utilization of imported inputs in eligible exports by notification no. 31/2013-Cus dated 1st August 2013, was confined to the latter. Following the decision of the Hon'ble High Court of Punjab & Haryana, in Pushpanjali Floriculture Ltd v. Union of India in 2016 that negated the condition of actual usage of inputs in the export product with recourse, thereafter, to the export promotion scheme, the appellant, on 16th September 2019, also sought for conversion of the shipping bills on which drawback had been claimed, and received, during the interregnum with an undertaking that the dra....
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....ncentivized by duty escapement on the import of specified inputs, consumables and capital goods which is implemented through the power vested in the Central Government by Customs Act, 1962 to issue exemption notifications. These represent an internal compromise for attainment of other objectives of governance by sacrificing of revenue. 5. The exceptionalism that characterizes 'drawback' - statutorily obligating the customs administration to reimburse taxes on satisfaction that export has been completed - stands in vivid contrast to episodic certification of individual shipments that gains for the exporter exemption from customs levy on future imports against a status that is accorded, and monitored during the life-cycle, by an authority external to the customs administration. The understandably rigid approach to determination of eligibility for such exemptions, emanating from the Foreign Trade Policy, has been demonstrated in the reliance upon limitation espoused in the circular for denial of the application requiring us to consider the nature, and purport, of the lenitive adjuring therein, as well as in that of the predecessor one, to which we shall devote attention after deali....
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....the period 7-10-2014 to 26-6-2015 and the goods which are sought to be exported were examined in accordance with the law for sanctioning of duty drawback, as any other export promotion scheme. In our considered view the situation in the case in hand is covered straightly by the Board's Circular dated 23- 9-2010......' in consequence to the observation that '5.1 The undisputed facts are appellants had exported biscuits and assorted confectionery products and seeking duty drawback benefits as per para 4.1 (b) (ii) of Foreign Trade Policy and the duty drawback claim of the appellant has not been sanctioned till the filing of this appeal.... xxxx 5.3 It is not the case of the department that duty drawback or DFIA is not export promotion scheme. 5.4 The adjudicating authority has recorded findings that since the duty drawback claim of exporter are under process and is not denial of drawback, but kept under suspension for some reason, the exporter cannot belatedly seek conversion is also incorrect... 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 s....
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....dental. In the present dispute, the issue for determination is restricted to the time limit and any relief of conversion on substantive grounds, having neither been preferred before, nor sought from the applicant by, the 'proper officer', is not within the sphere of our decision. Therefore, the cited decisions do not afford finality in the manner claimed by Learned Counsel. 7. The adjunct contention on behalf of appellants, following from the claim of being covered on all fours by the cited decisions of the Tribunal, is that the circular relied upon by the adjudicating authority has been held, in those very decisions, to have imposed restrictions that are not envisaged in section 149 of Customs Act, 1962. We note that the observation, in re Parle Products Pvt Ltd, on enforceability of time limit prescribed in the cited circular has been echoed in re Lykis Limited. Learned Authorized Representative contends that departmental authorities are bound by each of the prescriptions, including that of rejection of conversions that are not sought within the time limit of three months, stipulated in circular no. 36/2010-Cus dated 23rd September 2010 of the Central Board of Excise & Customs....
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.... exercised judiciously, but 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. 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....' Therein, the Hon'ble High Court did distinguish the two while, at the same time, rendering a finding that not only was the rejection consistent with the circular relied upon but also within the scope of judiciousness spelt out in section 149 of Customs Act, 1962. Resolving another dispute, in Commissioner of Customs (Seaport- Export), Chennai v. Suzlon Energy Ltd [2013 (293) ELT 3 (Mad)], arising fro....
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.... entry or shipping bill or bill of export shall be so 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 in the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.' in Customs Act, 1962, it is seen that amendments of documents can be facilitated at any time after their presentation in the custom house. The seemingly 'open-ended' jurisdiction for amendment of documents is, nonetheless, constrained within the discretion vested in the 'proper officer' to permit that. Clearly, it is not a right to have the amendments incorporated and the applicant is, therefore, obliged to justify the necessity, in terms of consequential detriment, for invoking the provision. Concomitantly, it devolves on the 'proper officer' to place the applicant on notice of any want that may impede such permission or of any doubts that may be brought to bear on grant of the application and to further issue a reasoned order in the event of rejection. The deployment of the expression 'document' and the appending of proviso is calculat....
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....missions of the applicant to counter the proposal for rejection. Any circumscribing or circumvention of this essence is not a correct exercise of discretion vested in the proper officer. 11. The request of the appellant herein has been denied for noncompliance with the circular cited in the impugned order. Appellant had been compelled to forgo coverage, and inconsistent with the law as it now appears, under a scheme in the Foreign Trade Policy that may have entitled them to post-exportation import of specified goods without payment of duty and it is only by the requested amendment that the Directorate General of Foreign Trade could consider extending that privilege to them. Approval of the request would exclude them from the reimbursement, contractually stipulated, in section 75 of Customs Act, 1962 and, therefore, entails recourse to section 149 of Customs Act, 1962. Further enablement for privileges flowing from a scheme, devised under the authority of Foreign Trade (Development & Regulation) Act, 1992, would emanate from the flexibility intended by circular no. 36/2010-Cus dated 23rd September 2010of Central Board of Excise & Customs. 12. The imperative of implementing sch....
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....oms Act, 1962, empowered to issue 'orders, instructions and directions' to officers of Customs who are required to observe and follow these; however, even when the superseding circular was communicated, such empowerment was limited to 'uniformity in the classification of goods or with respect to the levy of duty thereon' and it was only with effect from 8th April 2011 that such 'orders, instructions and directions' could encompass '....implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any provision, restriction or procedure for import or export of goods...' In the absence of such authority, which could be construed as empowerment to enforce restricted applicability, the impugned circular, as well as its predecessor, could not have imposed rigid restrictions that are not contemplated in the parent statute and, in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another. The Tribunal, in re Parle Products Pvt Ltd, also acknowledged this conclusion thus '5.6 We find strong force in th....