TaxTMI 
TaxTMI 
2023 (8) TMI 1243
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....on 149 of the Customs Act interalia provides for amendment of shipping bills after export of the goods only on the basis of documentary evidence which was in existence at the time when the goods were export. The party have not given any reason beyond their control due to which they failed to comply with provisions of Rule 13 (1) (a) of Drawback Rules. Therefore, in the light of above discussions, I find that drawback on the basis of said free shipping bills cannot not be allowed." 1.2 The Tribunal has allowed the Early Hearing Application in the present matter vide Miscellaneous Order No.70062/2022 dated 03.08.2022. 2.1 Appellant is manufacturer and exporter of paper and paper products classifiable under Chapter 48. During the period from 01.07.2017 to 01.08.2018 they have exported their goods against free shipping bills. For the period prior to and post the above stated period they had exported their goods under claim of drawback by filing the Drawback Shipping Bills. Drawback has been allowed in respect of these shipping bills. 2.2 Subsequently, appellant made a request on 07.12.2019 to the jurisdictional Assistant Commissioner for conversion of free shipping bills filed durin....
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.... export under drawback, is not convincing. I observe that para 3 9a) of Circular No 36/2010-Cus dated 23.09.2010 allows conversion of shipping bill from schemes involving rigorous examination to schemes involving less rigorous examination subject to condition that conversion is made by the exporter within three months from the date of Let Export Order. Conversion of Free Shipping Bills to Drawback Shipping Bills also fall in the same category i.e. from the schemes involving more rigorous examination to scheme involving less rigorous examination. Free Shipping bills are subject to Nil examination norms whereas Drawback shipping bills are subject to 10% examination norms in terms of Circular No 6/2002_Cus dated 23.01.2002. Accordingly, time limit for filing application for conversion of Free Shipping Bills to Drawback shipping Bills may not be unlimited and there should be a reasonable time period for filing the application. I find that the party failed to provide any plausible reason for such a long delay i.e. more than 03 years in filing the application which was beyond his control. I further observe that Rule 13 (1) (a) of Customs and Central Excise Duties Drawback Rules, 201....
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....f risk evaluation through appropriate selection criteria: Provided also that such amendments, as may be specified by the Board, may be done by the importer or exporter on the common portal. 4.4 Proviso to above Section clearly provides that conversion of the shipping bill subsequent to exportation of the goods can be permitted on the basis of documents that were in existence at the time of exportation of the goods. Commissioner has in the impugned order without allowing any opportunity to appellant to explain their case rejected their application for conversion of free shipping bills to drawback shipping bills. From the impugned order it is evident that the Commissioner has been guided by the delay in filing the request under section 149 to reject the same. Section 149 do not provide for any time limit for making the request for conversion. In a similar case of Autotech Industries (India) Pvt. Ltd. [2022 (380) E.L.T. 364 (Tri. - Chennai)] tribunal while permitting the conversion has negated all the grounds stated by Commissioner in his order for not allowing the conversion. The said observations are reproduced below: "13. The appellant has made request for conversion of the s....
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....alue of Export INR DBK Amount 1. For 2000 - 2001 Invoices 46,685,572.50 887,026.00 2. For 2002 - 2003 Invoices 61,438,095.68 1,167,319.00 3. For 2003 - 2004 Invoices 341,033,124.36 6,479,534.00 4. For 2004 - 2005 Invoices 172,758,600.00 3,282,413.40 5. For 2005 - 2006 Invoices 513,563,926.05 9,757,709.00 6. For 2006 - 2007 Invoices 335,911,765.83 6,382,316.00 7. For 2007 - 2008 Invoices 600,337,073.14 11,406,412.00 8. For 2008 - 2009 Invoices 342,435,776.37 6,506,279.00 9. For 2009 - 2010 Invoices 402,037,449.91 7,638,718.00 10. For 2010 - 2011 Invoices 458,249,510.96 8,706,737.00 11. For 2011 - 2012 (Upto Dec. 12) 253,438,788.39 4,815,328.00 12. January 2012 to March 2012 37,595,276.88 7,51,906.00 13. April 2012 to June 2012 4,68,16,310.85 9,36,320.00 14. July 2012 to September 2012 3,16,22,695.08 6,32,451.00 15. October 2012 to December 2012 4,09,40,845.31 8,18,817.00 16. January 2013 to March 2013 6,76,08,335.91 13,52,166.00 17. April 2013 to June 2013 6,39,40,642.06 12,78,819.00 18. July 2013 to September 2013 9,08,81,484.78 17,56,341.00 19. October 2013 to December 2013 8,80,73,595.68 15,00,140.00 20....
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....ater, this point was discussed in para 12 and 13 of the judgment. The contention of the Revenue that the documents should be available with the department was not accepted by the Hon'ble High Court. The proviso gives an opportunity to the exporter/importer to furnish documents which were in existence at the time of export/import and get the error rectified. We therefore hold that the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable. 20. We may now address the issue of limitation which is the main ground for rejecting the request for conversion of free shipping bills to drawback shipping bills. The request for conversion/amendment of shipping bill is made under section 149 of the Customs Act, 1962. This section does not prescribe any time limit for filing an application for amendment of shipping bill. The said section reads as under:- "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: Provided that no amendment of a bill of entry or shipping bill or bil....
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.... (v) remittance report on 3.1.2020 order was submitted. However, the request was rejected once again. The Hon'ble Court held as under:- "11. Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were 'in existence' at the time of the goods were cleared, deposited or exported to establish the error. 12. The lis in this matter revolves around the interpretation of the phrase 'in existence', as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, 'on record' that such amendment could even be considered. 13. I cannot agree. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were 'in existence' at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such....
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....) of Drawback Rules and opined that the apprehension of the counsel for petitioner that the request for conversion would be subject to scrutiny on the ground of limitation is for no reason. 26. The Hon'ble High Court of Delhi in the case of Dimension Data India Pvt. Ltd. Vs. Commissioner of Customs - 2021 (376) ELT 192 (Bom.) has examined the very same issue. In the said case, the Bills of Entry dated 15.3.2019 to 25.4.2019 were sought to be amended. During internal audit, the petitioner realized that it had made inadvertent typo error at the time of filing the Bill of Entry by incorrectly declaring the CTH as 85176990 instead of correct CTH 85176930. For the goods under CTH 85176930, the rate of duty is NIL whereas in respect of goods under other heading, the rate of duty is 20%. The error resulted in payment of excess duty to the tune of Rs. 14,50,01,413/-. Immediately, on detecting the error, a letter dated 7.6.2019 was submitted requesting to correct the bill of entry. The request was declined. The Hon'ble High Court referred to various decisions including the decisions in Hewlett Packard Enterprises (supra) and Usha International Ltd. Vs. Assistant Commissi....
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....prescribed to file the request for conversion / amendment. Section 149 does not prescribe any time limit for filing an application for amendment of document. No doubt that section 149 of the Customs Act, 1962 would prevail over the Board circular. Further, Rule 12(1) of the Drawback Rules,1995 which lay down the procedure to claim drawback also allows filing of belated declaration to claim drawback if the Commissioner is satisfied that the failure to file the declaration was due to reasons beyond the control of exporter. The Rules also does not limit the time. We have to hold that the request for conversion of Free Shipping Bill cannot be denied as time-barred by resorting to the Board Circular. 28. Be that as it may, before concluding, we are not able to overlook a serious question presented by the peculiar facts of the case before us. In the absence of any period of limitation prescribed in the section, whether it would mean that the remedy / relief can be sought for at any time when the Importer / Exporter wake up to realize the mistake or omission. In our opinion, the remedy has to be sought for within a reasonable time. A legal claim cannot be enforced if there is a long del....
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....he appellant in filing application for conversion of the free shipping bill to drawback shipping bill. Needless to say, that the consequence of such conversion is nothing but to put forward a claim for duty drawback. 32. At the cost of repetition, it is stated that in the first application for amendment dated 9.10.2015 the period involved is from 2012 to 2014. In the second application dated 25.1.2016, the appellant has included the period from 2000 to 2011 also. 33. Though section 149 of Customs Act, 1962 and Drawback Rules, 1995 do not specify any time limit, the huge and humongous delay does concern us. Under section 75A there is liability to pay interest on delayed payment of drawback. Conversely, it has to be construed that a claim of drawback has to be filed within reasonable time. The Limitation Act, 1963 bars unduly long time for pursuit of a legal remedy. Neither do courts encourage enforcing stale demands. 34. Section 27 of the Customs Act, 1962 deals with claim for refund of duty. The refund claim under this section has to be filed within one year from the date of payment of duty. Section 28 deals with recovery of duty which is not paid or short-paid. While raising....
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.... years depending upon whether there was any suppression of facts involved or not. We observe that the scheme of the Customs Act is similar to the scheme of Central Excises and Salt Act and in that view of the matter we hold that similar view has to be taken in the case of recovery to be made under the Customs Act where no period of limitation has been prescribed. In this premise we therefore hold that the lower authority's order is prima facie maintainable in law and the prayer of the department for stay of the operations of the order of the Ld. Lower Authority has to be dismissed. Inasmuch as it is a covered matter by our decisions referred to supra the appeals themselves are also taken up for disposal with the consent of the both sides. The only plea of the Revenue is that in the absence of any period of limitation provided under Section 61(3), the general period, of limitation prescribed under the Limitation Act should be made applicable. We are unable to accept this plea of the Ld. D.R. in view of the judgment of the Hon'ble Supreme Court in the case of G.O.I. v. Citedal Fine Pharmaceuticals (supra). The Hon'ble Supreme Court in para 6 has held is reproduced below : "Ld.....
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....de under the Customs Act where no period of limitation has been prescribed. We therefore hold that the Ld. Lower Authority is right in holding that the demand for interest beyond the period of six months from clearance of goods is barred by limitation and we therefore uphold the order of the lower authority and dismiss the appeals. We observe that the relevant date for demand of duty would be date on which goods were allowed clearance from the Warehouse as the interest is required to be paid till the date of clearance in terms of Rule 61(3) of the Customs Act, 1962. The department recovered at the time of clearance the duty as well as interest as held payable at that time and cancelled the bonds. Taking into consideration the relevant date the demand have been clearly raised much after the period of six months. The Appeals of the Revenue are therefore dismissed." 37. The Tribunal refused to accept the plea of Revenue that the limitation period of three years for recovery of money as per Limitation Act, 1963 should apply. The said decision of the Tribunal was upheld by the Hon'ble Supreme Court as reported in 2000 (119) ELT A177 (SC). The principle enunciated in these judgment....
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....gislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of 30 days, can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded. 15. The expression "expressly excluded" in sub-section (2) of Section 29 of the Limitation Act means an exclusion by express words, i.e. by express reference and not exclusion as a result of logical process of reasoning. In the instant case, there is no question of implied exclusion but, it specifically provides a different period of limitation, as also the period during which, if delay has occurred, it could be condoned." 39. The Hon'ble High Court held that when the Act provides for different period of limitation, the applicability of section 5 of the Limitation Act is specifically excluded. 40. Reverting to the case on hand, although no limitation has been prescribed in section 149, an assessee cannot be permitted to take undue advantage. The remedy of amendment under s....
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....rsion / amendment of the shipping bills is as under:- Section 149. ...... 11. The said provision does not stipulate any time limit for permitting the amendment of shipping bills. The department has relied upon the Board Circular No. 36/2010 (supra). The said circular reads as under:- "Sub: Conversion of free shipping bills to export promotion scheme shipping bills and conversion of shipping bills from one scheme to another - reg. I am directed to invite attention to the Board's circular No.4/2004-Cus dated 16.01.2004 which debars conversion of free shipping bills to Advance License/DFRC/DEPB shipping bills and allows conversion of shipping bills from one export promotion scheme to another only where the benefit of an export promotion scheme claimed by the exporter has been denied by the DGFT/MoC&I or Customs due to any dispute. 2. It has been represented to the Board that the norms for allowing conversion of shipping bills may be relaxed and the Commissioners should be allowed to consider requests 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 ....
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....n. e) The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/ misdeclaration /manipulation has been noticed or investigation initiated against him in respect of such exports. 4. Free shipping bills (shipping bills not filed under any export promotion scheme) are subject to 'nil' examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995. 5. Due care may be taken while allowing conversion to ensure that the exporter does not take benefit of both the schemes i.e. the scheme to which 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 b....
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.... 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the customs house to be amended: 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. 9. On the other hand, the respondent rejected the application of the petitioner by relying upon condition No.3a of the WP(C).No.21418 OF 2020(B) 6 Circular which reads thus: "The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO)" 10. It is trite law that circulars cannot assume the role of the Principal Act 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 Ordinan....
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.... was right in holding that the 1st respondent is entitled to the benefit of the Circular No.36/2010, dated 23.09.2010 and that the period of limitation of 3 months under the said circular is not applicable to the 1st respondent as Section 149 does not impose any period of limitation? (ii) Whether the 2nd respondent tribunal was right in holding that, though the 1st respondent filed the shipping bills prior to the implementation of the Circular No.36/2010, dated 23.09.2010, the aid http://www.judis.nic.in 3 circular is applicable to the 1st respondent despite the fact that the circular specifically enunciates that the circular shall be applicable only to shipping bills filed on or after the date of issuance of the circular? (iii) Whether the Tribunal was right in holding that the Circular No.36/2010, dated 23.09.2010 is applicable to the 1st respondent, when Circular 4/2004 dated 16.01.2004 was in force at the relevant point of time when the 1st respondent filed the shipping bills? (iv) Whether the Tribunal was right in remitting the case back to the adjudicating authority for verifying if the documents filed were in existence at the time of the export, despite the ....