AI Drafter 
TaxTMI 
TaxTMI 
2022 (2) TMI 745
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....ping bills to advance authorization shipping bills. The request was rejected by the Commissioner on the basis of the Board Circular No. 36/2010 dated 23.9.2010. Hence this appeal. 3. The learned counsel Shri M. Karthikeyan appeared and argued on behalf of the appellant. He submitted that the appellant had exported "Paint for Fire Proofing" vide shipping bills dated 18.4.2018 and 2.5.2018 under advance authorization. In the first page of both these shipping bills it had been clearly indicated that the export is under advance authorization. Similarly, in both the export invoices raised for the export shipments, the appellant had indicated that the export is made under advance authorization. However, in the second page of the above shipping bills, in the space provided for mentioning the scheme code, they had inadvertently declared the code as "00" pertaining to free shipping bill instead of "01" which is the code for scheme shipping bill. Further, they had also wrongly mentioned the advance authorization license No. as 0310820320 dated 9.4.2018 instead of 0310820746 dated 2.5.2018. 4. Immediately on realizing the mistake, the appellant requested for amendment of the shipping bi....
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....ipping bill cannot be merely for the reason that the consignment was not opened for physical examination is without any legal basis. 7. In addition, the appellant has received the export proceeds in FOREX in respect of both the shipping bills. The BRCs also have been furnished. As per the Handbook of Procedures / Foreign Trade Policy, the advance authorization holder is required to maintain consumption register in form Appendix 4H and submit a certified copy of the same for obtaining necessary EODC from the licensing authority. Since all the documents are clear with regard to the goods exported, the rejection for request of conversion of free shipping bills on the ground that the goods have not been physically examined has caused much injustice to the appellant. He prayed that the appeal may be allowed. 8. The learned AR Shri Vikas Jhajharia appeared on behalf of the department and supported the findings in the impugned order. He adverted to the discussion and findings in para 6 of the impugned order. As per the Board circular No. 36/2010 (supra) the request for conversion has to be filed within three months. In the present case, the appellant has filed the request with a del....
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....sts for conversion of shipping bills from free to export promotion scheme and from one export promotion scheme to another on a case to case basis depending on the merits of the case. It has also come to notice of the Board that the Tribunals in a series of judgments have held that amendment to shipping bill after export of goods is governed by the proviso to section 149 of the Customs Act, 1962 and if the requirements of the said proviso are satisfied, conversion of shipping bill should be allowed. The conversion of the shipping bill from one scheme to another cannot be linked with denial of benefit of one scheme by DGFT/MoC&I or Customs due to some dispute as no such condition for amendment of shipping bill has been provided in section 149 of Customs Act, 1962. 3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (for example, from Advance Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB sch....
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....ich conversion is sought and the scheme from which conversion is sought. Whenever conversion of a shipping bill is allowed, the same should be informed to DGFT so that they may also ensure that the exporter does not take benefit of both the schemes. 6. This circular supersedes the Board circular No.4/2004-Cus dated 16.01.2004 and the earlier circulars issued in the past on this issue. This circular shall be applicable only to shipping bills filed on or after the date of issuance of this circular. Till such time as EDI system is modified to allow conversion of shipping bill in the EDI system, conversion may be allowed manually. 7. A suitable Public Notice for information of the Trade and Standing Order for guidance of the staff may be issued. Difficulties faced, if any in implementation of the directions may be brought to the notice of the Board." 12. When the statute does not prescribe any time limit for filing an application for conversion of a shipping bill, the department cannot rely upon a circular to frustrate the provisions contained in the statute. When there is a conflict, the statute will definitely prevail over the Board circular. The issue whether th....
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....lest the provisions only a binding force. If at all the revenue is facing difficulties in accepting and processing applications for amendment of bills of lading, an amendment to the Principal Act can be suggested in accordance with law and till the pendency of the same, an Ordinance can also be issued. No such stand is taken as evident from Ext.P10. I am afraid the action of the respondent cannot be accepted, for, it is an utter violation of statutory provision of Section 149 of the Customs Act. For the reasons assigned, the impugned order Ext.P10 dated 7.7.2020 is hereby quashed. The writ petition is allowed. Respondents are directed to issue no objection certification seeking amendment of the bill in accordance with law. Let this exercise be done within a period of one month from the date of receipt of a copy of this judgment." 14. The second ground for rejecting the request for conversion of free shipping bills is that the goods exported have not been subjected to physical examination. As can be seen from Section 149, which has been noticed above, there is no requirement in the said section that the amendment can be allowed only if the goods have been subjected to physical ex....