TaxTMI 
TaxTMI 
2023 (4) TMI 836
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....section 149 of the Customs Act, 1962 requesting for conversion of the DEEC shipping bills to drawback shipping bills on the ground that due to abolition of customs duty on crude oil with effect from 25.06.2011 they could not avail duty free import benefit of ATF exported by them during the period October 2010 to August 2011. Following this, letters dated 04.10.2011, 09.11.2011, 29.12.2011 and 19.01.2012 were subsequently made as per the chart given below: S NO. Date of Application Period of export as per S/Bs Total No. of S/Bs ATF Qty. Exported (in MT) Advance Authorisation No. & date 1 04.10.2011 2.12.10 to 26.2.10 14 665 0510285443 Dated 2.12.10 2 9.11.11 2.12.10 to 26.2.12 233 14435 0510278443 dt. 8.3.11 3 29.12.11 16.11.10 to 25.11.10 468 12545 0510262749 Dt. 21.4.10 4 19.1.12 1.5.11 to 23.5.11 1195 32980.170 0510289161 Dt. 20.04.12 4. The request of IOC in terms of the aforesaid applications for conversion of DEEC shipping bills to drawback shipping bills for the purpose of availing duty drawback were examined in terms of the provisions of section 149 of the Customs Act read with the CBEC's Circular No. 36 / 2010-Cus dated 23.09....
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....rcular No 36/10 dated 23.06.2010 and they are quoted 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 customs house to be amended:[In such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed]; Provided that no amendment of a bill of entry or 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. Rule 12. Statement/Declaration to be made on exports other than by Post. - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods - (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate or rates a....
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....e 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 scheme or vice versa) irrespective of whether the benefit of an export promotion scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not. The conversion may be permitted in accordance with the provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on the basis of documentary evidence which was in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by t....
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....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. Kindly acknowledge receipt of this Circular." 10. We now need to consider the rulings of the various Courts/Tribunals interpreting the provisions of section 149 along with the Circular on the subject. The Learned Counsel for the appellant has placed reliance on the decision of the Tribunal Chennai Bench in Diamond Engg. (Chennai) P. Ltd. Vs C. C. (Seaport-Export), Chennai, which decided the issue taking the view that the Circular is beneficiary in nature and the fact that section 149 of Customs Act does not prescribe any time limit, the amendment sought cannot be denied on the ground of limitation. The Learned Single Member distinguished the decision of the Delhi High Court in M/s Terra Films Pvt. Ltd., vs. Commissioner of Customs - 2011 (268) ELT 443 being factually different. The Hon‟ble High Court of Madras rejected the appeal filed by the department against the said order holding that no substantial question of law is involved, Commissioner of Customs Vs. M/s Diamond Engg. Chennai P. Ltd. 2019 - TIOL-HC-MAD-CU....
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....tion 149 does not prescribe any time limit. The view taken was that amendment is merely a procedural requirement and law allows amendment of the shipping bill even after the goods have been exported, the only requirement is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported relying on the decision of the jurisdictional High Court in M/s Hewlett Packard Enterprises India Pvt. Ltd., Vs Joint Commissioner of Customs 2020 (10) TMI 970, however, the decision of the Delhi High Court in M/s Terra (supra) was not taken note of. The decision in Autotech Industries was followed in M/s Carboline India Pvt. Ltd., Vs Commissioner of Customs, Chennai 2022 (381) ELT 397 holding that circular cannot be applied to reject the request of conversion / amendment of shipping bills. 11. We may now refer to the decisions cited by the Learned authorised representative for the revenue. The decision of the Delhi High Court in M/s Terra Films Pvt. Ltd., (supra), where the learned Division Bench dealt with similar fact situation of a request for conversion of the DEEC/DEPB shipping bills into DEEC/DEPB cum Drawback Scheme after lapse of more than ....
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....d by the respondent cannot be said to be a mere amendment in the shipping bill as contemplated under Section 149 of the Customs Act, but it will be case of conversion of one scheme to another scheme, for which, proper officer is required to verify whether the very manufactured final product which has been manufactured from the raw material has been exported or not. 7. The contention on behalf of the petitioner that as the case would fall under Section 149 of the Customs Act which does not prescribe any time limit and therefore, on the basis of material on record, which was available at the time of export, it could have been verified whether final goods manufactured from the raw material imported has been exported or not, can be verified is concerned, as such, as observed herein above Section 149 of the Customs Act will not be applicable. Even otherwise, it is required to be noted that what is considered at the time of DECC, the appropriate inquiry would be limited to the extent to satisfy the authority whether raw material which was imported has been used in manufacturing final product or not. So far as Advance Authorisation Scheme is concerned, the appropriate authority is requi....
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....ourt of Delhi in the case of M/s Terra (supra) held: "6. As per proviso of this Section 149, no amendment of a shipping bill was to be allowed after the export goods have been exported except on the basis of the documentary evidence, which was in existence at the time the goods were exported. The submission of the learned counsel for the appellant/ exporter in this regard was that the exporter was in possession of all the documents at the time of export to show that it was entitled to claim under the DEPB/DECC cum drawback scheme. From the plain reading of Section 149, it may be seen that exporter could not claim amendment in routine and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be 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 promot....
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....clarified that conversion may be permitted in accordance with the provisions of section 149 of the Customs Act on a case to case basis on merits provided the Commissioner of Customs is satisfied on the basis of documentary evidence which was in existence at the time the goods were exported to ascertain that goods were eligible for the export promotion scheme to which conversion has been requested. The conversion was then made subject to certain other conditions, primarily the time limit to make the application for conversion, within a period of three months from the date of Let Export Order (LET). The other conditions relate to the specifications of the documentary evidence. In interpreting the applicability of the circular and whether the conditions set out are mandatory or directory, we need to look into the object in adding those conditions in the circular. The underline object of the circular no doubt is to relax the norms for granting conversion of one export promotion scheme to another, however at the same time the circular provides that due care should be taken to ensure that the exporter does not take the benefit of both the schemes, i. e. the scheme to which conversion is ....
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....r the provisions of Section149 of the Customs Act, 1962 and the Board's Circular No 36 /10-Customs dated 23.09.2010." We would also like to take note of the contention raised by the appellant that their application dated 13.02.12 for conversion of 3881 shipping bills was within 3 months from the date of „Let Export Order‟ but the adjudicating authority found that no export documents for which conversion is sought were submitted by them to the department even till the date of the order. The appellant has referred to their letter dated 16/17.04.2012 whereby according to them they had submitted the documents. The said letter has been submitted much after the rejection order dated 15.02.2012 by the competent authority and therefore the same has no relevance. We cannot ignore these findings though the appellant had submitted that they have filed the requisite documents. 15. We would like to refer to the decision in Indian Aluminum Company Ltd Vs Thane Municipal Corporation 1991(55) ELT454, where the Apex Court observed that in the matter of exemption or concessions the non observance of even procedural condition should not be condoned, if it is likely to facilitate com....
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....he Court. In that view, the circular in question is binding on the department and the same requires to be strictly followed. 18. The violation of the above two conditions of making the application within the time limit of 3 months and also filing of the requisite documents, the appellant is not entitle for conversion of the DEEC shipping bills to Drawback shipping bills. The benefit of conversion from one export promotion scheme to another is by virtue of the circular so the appellant cannot say that they are entitle to claim the benefit under the circular but at the same time they are not required to comply with the conditions stipulated therein. The appellant cannot pick and choose the terms of the circular. 19. The contention raised by the appellant that the circular by prescribing the period of 3 months for making the application for conversion of the scheme is beyond the provisions of section 149 of the Customs Act is already unsustainable. We do not agree with such a submission for the simple reason that section 149 is silent on the aspect of limitation and the circular has only filled in that lacuna which does not amount to overriding the statutory provision. A circular th....