AI Drafter 
TaxTMI 
TaxTMI 
2022 (12) TMI 983
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....N' option is peripheral to customs procedure would appear to be so from '5. The Policy HBP para 3.14 relating to declaration of intent for reward on goods requires the exporter to, for shipping bills filed from 1-6-2015 onwards, mandatorily declare intent for rewards on shipping bill. Till then, the present position of mandatory declaration for certain shipping bills would continue. The changed position shall enable Customs to take more informed decisions.' in circular no. 14/2015-Cus dated 20th April 2015 of Central Board of Excise & Customs (CBEC) which, while referring to the prescription of '3.14 Declaration of Intent on shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e-Commerce. (a) Export shipments filed under all categories of the Shipping Bills would need the following declaration on the Shipping Bills in order to be eligible for claiming rewards under MEIS: "We intend to claim rewards under Merchandise Exports From India (MEIS)." Such declaration shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of....
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....of intent, hitherto in vogue for some schemes, entered in some convenient column of the shipping bill for manual processing by Directorate General of Foreign Trade thereafter was phased out with the introduction of electronic processing and, that too, of only such exports as gain entry into the system of Directorate General of Foreign Trade (DGFT). 4. Thus, after 1st June 2015, shipping bills that were to be distinguishable as ticked with 'N' (of concern only to customs clearance system) and ticked with 'Y' (for common use by customs clearance system and licencing authority system) inadvertently landed with an unforeseen third: shipping bills with 'N' ticked erroneously that were not transmitted to the DGFT. The immediate problem of such entry in bills filed between 1st April 2015 and 30th September 2015 was resolved by having the system of the licencing authority populated with the missing details through inter-departmental procedure. It is for enabling the transfer from second to third category, by substituting 'Y' for 'N' in the impugned shipping bills filed after this window, that application was preferred and the denial thereof is now under challenge. 5. With the context....
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....ars to have glossed over the crude superficiality of absolute untouched by the polish of proportion. That the rectification sought in a mere 55 of the totality of 845 bills filed during the period may well be justified has not found resonance in the 'impartiality' of the adjudicator. 8. As denials of such requests are not normally responded to so elaborately and in a communication emanating directly from the competent authority, a narrative of the background must find a place in our discussions. The appellant, frustrated by the lack of response from customs authorities, had approached the Hon'ble High Court of Bombay in writ jurisdiction which culminated in order of 16^th November 2021 directing disposal of '3......representation in accordance with law and upon granting opportunity of hearing to the petitioner within three weeks from date. It is ordered accordingly. In the event the petitioner's prayer for amendment is granted, follow-up action shall be taken also in accordance with law; if, however, the prayer for amendment is disallowed, a reasoned order shall be passed and communicated to the petitioner immediately thereafter' thus according judicial reco....
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....ce to have existed at the time of export and the patent absence of even deducible intent to avail the benefit of 'merchandise exports from India scheme (MEIS)' in any of the documents submitted left no other option to the competent authority under section 149 of Customs Act, 1962; this, he contends, is in compliance of the order of the Hon'ble High Court of Bombay. He further argued that the decision of the Hon'ble High Court of Gujarat in re Bombardier Transportation India Pvt Ltd and of the Hon'ble High Court of Madras in KI International v. Commissioner of Customs (Appeal-II), Chennai [2021 (378) ELT 285 (Mad)] had been founded on the endorsement of intent in the shipping bills which is not evident here. As far as the bar of limitation is concerned, he contends that the impugned order has categorically explained the circumstances in which the circular of Central Board of Excise & Customs (CBEC) is applicable. 11. According to the adjudicating authority, the discretion to permit amendments in documents is circumscribed by the conditions that may be prescribed under the empowerment of section 149 of Customs Act, 1962 and that time limit prescribed in circular no. 36/2010 dated ....
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....es of governance. It is moot, therefore, if the intent of the circular is to be perceived in its letter, as held by the 'proper officer', rather than in its spirit as claimed by the appellant. To deduce the propriety of either alternative, we turn to the legislative authority for such prescriptions as well as the chronological evolving of a uniform approach to guiding such facilitation. Circular no. 36/2010-Cus dated 23^rd September 2010 was preceded by circular no. 4/2004-Cus dated 16th January 2004 of Central Board of Excise & Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised by the exporter. The timeframe of one month, in the first of the circulars, kic....
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.... invoked only in the absence of any mitigating circumstances offered up in response to clarification sought by the 'proper officer' from the appellant for an appropriate decision. We are unable to perceive any such considered resolution of the request preferred by the appellant to the Commissioner of Customs.' from which it is abundantly clear that rejection of the impugned application for non-conformity with the deadline prescribed therein does not have the authority of law in the absence of such disbarment in section 149 of Customs Act, 1962 or, at time when application was preferred, of empowerment vested in Central Board of Excise & Customs (CBEC) to prescribe such. 13. The amendment sought by the appellant does not involve change of any of the particulars mandated for inclusion under the authority of section 50 of Customs Act, 1962. Nor is there any plea for alteration of endorsement, if any, made in the shipping bills under the authority of section 51 of Customs Act, 1962. All that the appellant seeks is the substitution of 'N' with 'Y' in these bills and, that too, owing to manual facilitation not available as alternative, solely for the purpose of making shipment part....
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....ions to be analysed in such disputes. It is also clear from the discussion supra that 'Y'/ 'N' option is a requirement under an authority that does not have force of law. This did not appear to have crossed the ken of the adjudicating authority herein. 14. In re Haldiram Foods International Pvt Ltd, the Tribunal had also held that, absent any empowerment to impose restrictions that are not consistent with section 149 of Customs Act, 1962, as it was then, and that the circulars, issued by Central Board of Excise & Customs (CBEC), and extant even now, are to be construed as intended for trade facilitation to overcome procedural impediments in availing benefits of schemes in the Foreign Trade Policy. That legislative intent is now made even more apparent by the sanction in Shipping Bill (Post export conversion in relation to instrument based scheme) Regulations, 2002 vide notification no. 11/2022-Customs (NT) dated 22nd February 2022. The legal context within which the competent authority was required to examine the application impugned here is, therefore, relevant and pivotal for disposal of this appeal. 15. According to the adjudicating authority, the absence of any documentar....
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....ving been specifically defined, and being forms designed for assessment and clearance, 'bill of entry' and 'shipping bill' are not documents as intended in section 149 of Customs Act, 1962; indeed, the distinguishment accorded to these by the proviso argues the special dichotomy of the prescription for making the entry from the documents evincing the entry. This cleaving appears to have been intended to justify further limitation on the generality of empowerment to permit amendments in disposal of requests pertaining to bills of entry/shipping bills by freezing the moment of clearance/exportation as the touchstone. The distinction is attributable to source; 'documents' belong to the importer/exporter and the freedom to amend those is to be unabridged save of such content the amendment of which may be detrimental to the interests of the State while bills of entry/shipping bills, being prescriptions of the State, may be allowed for amending by importer/exporter only for conformity with the factum pertaining to export/import. The rationale for distinguishing the approach to making changes in shipping bills and the ultimate consequence of shifting between schemes cannot be more blindin....
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....iciencies and associated costs.' as espoused in chapter 3 of Foreign Trade Policy 2015-2020 which, in terms of judicial rulings, has force of law but with no quid pro quo, other than having exported notified goods to notified markets/countries, devolving on exporters. There is no dispute on facts arising therefrom insofar as the impugned exports are concerned and the eligibility, unlike other schemes, for reward requires determination only by the competent authority under the Foreign Trade (Development & Regulation) Act, 1992. The corresponding notification no. 24/2015-Cus dated 8th April 2015, issued under section 25 of Customs Act, 1962, also does not assign any 'scheme driven' responsibility for oversight of exports eligible for the said rewards. As per the Foreign Trade Policy 2015-2020 and the corresponding provision in the Handbook of Procedure, the competent authority under the Foreign Trade (Development & Regulation) Act, 1992 directly and electronically sanctions rewards upon application by eligible exporters; the details of eligible exports are already populated on that system from the shipping bills filed electronically with the jurisdictional customs formation by exp....
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....o consequence to the facts in this dispute. 18. It would appear from the contents of the impugned order and the submissions of Learned Authorized Representative that the onus devolving on the applicant to produce documentary evidence of intent to avail the benefit accruing from 'merchandise exports from India scheme (MEIS)' on exports effected by them has drawn sustenance from two public notices issued by the Directorate General of Foreign Trade (DGFT) and without considering the lack of significance therein, by assigning or by implication, to the assessment responsibility, or the gateway positioning, of customs authorities. Neither did the public notices seek to draw upon the statutory power of amendment conferred by the customs statute for regularization within the initial window of opportunity. These were intended to empower the subordinate formations of the Directorate General of Foreign Trade (DGFT), in its facilitative role, to overcome the sequestering of information, arising from failure to exercise the preferred option at the stage of entering for export, and not only have access to essential data but also to culminate in issuing of the 'scrips' that are the rewards env....