TaxTMI 
TaxTMI 
2021 (8) TMI 991
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....nd has single remark for dispute either by the Customs department or DGFT department and has always maintained very clean records and never misused any of the export policies or schemes nor claimed undue benefits by causing loss to the revenue exchequer. Appellant was issued two Advance Authorisation Licences bearing No.0710110560 dt. 21.10.2016 and No.0710111843 dt. 29.06.2017 with the condition of import of CIF value of Rs. 1,20,15,173/- (US $176,175.56) and Rs. 6,14,682/- (US $9,413.20) respectively and export of the quantity of imported with FOB value of Rs. 1,38,34,891/- (US $207,887.16) and Rs. 7,09,435/- (US $11,154.64) within a period of 18 months. The Appellant accordingly, imported 100% flax woven fabrics 221 GSM for the CIF value of Rs. 85,39,245/- (US $129,358) and Rs. 7,09,435/- (US $11,155) respectively from Special Economic Zone against the above mentioned advance licenses and exported 100% flax woven bleached fabrics RFD, GSM-221 for the FOB value of Rs. 2,52,70,400/- (US $3,82,998.05) and Rs. 20,00,922/- (US $29,226.97) respectively after processing. There was an inadvertent mistake committed by the employee of the appellant who was looking after the import and exp....
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....period and hence there cannot be any diversion of the imported goods at all. Further the appellant has also received the export proceeds in convertible foreign exchange and also received bank realisation certificate as proof of having exported the goods which clearly proves that the imported goods are exported and the appellant is rightly eligible for conversion of shipping bills. He further referred to Section 149 of the Customs Act, 1962 which provides for amendment of document and submitted that Section 149 confers a discretionary power vested with the proper officer and the same has to be exercised judiciously and sparingly in order to deliver justice to the parties who make an application. He relied upon the following decisions wherein amendment of shipping bills / bill of entry were allowed considering the export documents:- • Metallic Bellows (I) Pvt. Ltd. vs. CC (Exports) Nhava Sheva - 2008 (228) E.L.T. 479 (Tri. - Mumbai) • Upheld by the High Court in 2009 (241) E.L.T. 181 (Bom.) • Polydrug Laboratories Pvt. Ltd. vs. CC (General) Mumbai - 2015 (317) E.L.T. 271 (Tri. -Mumbai) • Diamond Engineering (Chennai) Pvt. Ltd. vs. C....
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....he knowledge of the exporter, then one cannot expect the exporter to make request for conversion of shipping bills within three months from the export. He also submitted that the export of goods in the present case spread over a period of three years starting from January 2017 to March 2019 and therefore, the fixing of time limit of three months is illogical, unfair and highly unsustainable in law. Learned counsel produced documents in Volume-I and Volume-II of the appeal paper book to prove that the imported goods are fully utilised for export and not even a single consignment was cleared locally during the relevant period in order to claim undue benefit by misusing the provisions of Customs Act. Further from the receipt of realisation certificate, the appellant has proved the export of goods and the Customs department has never disputed the sanction of duty drawback at any time till date. He also submitted that the observation in the impugned order that the shipping bills are not open for physical examination by Customs cannot be the basis to decide the issue against the appellant. In rare cases, the goods are physically examined and especially in the present case, considering th....
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.... they immediately reported to Deputy Commissioner seeking amendment of the shipping bill but the same was declined by the Principal Commissioner on the ground that there is a delay in filing the application and secondly export documents were not endorsed by the Customs officer and thirdly that the appellant has not been able to establish the foreign exchange receipt against these exports. In order to examine stand of the appellant, it is necessary to reproduce Section 149 of the Customs Act which is reproduced herein below:- SECTION 149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended: Provided that no amendment of a bill of entry or a shipping 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. Further proviso to Section 149....
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....quest has been refused. We find that the essential requirements in the Board's Circular for conversion of Shipping Bills from one scheme to another have been fulfilled by the appellant. Further, we also find that a similar issue had come up before the Tribunal in the case of Kiran Pondy Chems Ltd. v. Commissioner of Customs, Chennai [2006 (203) E.L.T. 588 (Tri.-Chennai)] and in that case also, the conversion was allowed by the Tribunal on the ground that in the ARE-1 form, there was a certification from the Superintendent certifying that the export took place under his supervision and the documents were existing at the time of export. It is to be noted that when this decision was rendered the Board's Circular which is much more liberal with regard to conversion of Free Shipping Bill to Export Promotion Shipping Bill was not here and circular issued in 2004 had laid down much stricter norms. In view of the discussion above, the issue in the present case is covered by decision in the case of Kiran Pondy Chems Ltd. (supra). Therefore, we allow the appeal and direct the Commissioner of Customs to allow conversion of the Free Shipping Bills to the Export Promotion Scheme Shipping Bills ....