TaxTMI 
TaxTMI 
2023 (8) TMI 1243
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....which promotion scheme he likes to avail. Section 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 Commissio....
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....t submitted any documentary evidence in this regard. Thus, I find that the reason submitted by the party for not effecting said 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 applic....
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....orted, as the case may be. Provided further that such authorisation or amendment may also be done electronically through the customs automated system on the basis of 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 g....
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.... 9,39,08,202.03 15,96,443.00 12. October 2014 to December 2014 5,29,61,530.50 9,40,536.00 15. In the subsequent letter dated 25.1.2016, the appellant has included the Shipping Bills from the year 2000 to 2011 also. The details of the annexure are as under:- Annexure Period INR FOB Value 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 Ju....
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....ted. The Bank Realization Certificate (BRC) would prove that consideration for the export has been received. 19. The learned AR has argued that the documents are not available with the department and that it is usually stored only for five years. As per Sec. 149, the requirement is not that the documents should be available with the department. It merely states that the exporter has to furnish documentary evidence which were in existence at the time of exports. In the case of M/s. Hewlett Packard Enterprises which is referred by us later, 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 draw....
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....cleared for home consumption. On 17.10.2019, the petitioner made a further request to which the officer vide communication dated 31.10.2019 referred to the judgment of Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata - IV - 2019 (368) ELT 216 and informed that petitioner could file refund for the excess customs duty paid. Yet another request was made on 21.11.2019 and documents in the nature of (i) Price list, (ii) Purchase order inter se the petitioner and its supplier's reflecting the correct unit price (iii) original invoices showing the error (iv) purchase order (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 interpret....
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....urthermore, Mr. Chopda, has not been able to show any other provision in the Act or, the Rules framed thereunder, which provide for a time limit for processing the claim lodged for duty drawback. 5. As indicated above, the Tribunal has not accepted the stand of the Revenue that the Assessee's claim can be subject to time limit, as provided in the 2010 Circular. 6. Accordingly, the appeal is dismissed as withdrawn. Resultantly, pending application shall stand closed. There shall, however, be no order as to costs". 25. In the above judgment, the Hon'ble High Court has referred to the Board Circular, Sec. 149 of Customs Act, 1962 and 12(1)(a) 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 rea....
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....nd 9 bills of entries of the respective petitioner under Section 17 read with proviso to Sections 149 and 154 of the Customs Act, 1962 within a period of six month from the date of this order after giving adequate opportunity to the petitioners to establish the classification of imported wall fan under sub-heading 8414 51 90 following the principle [it] of natural justice. (ii) Refund any will be subject to the petitioner satisfying the test of unjust enrichment." 27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. The relevant para 3 and 4 of the Board Circular No. 36/2010 has already been reproduced in para 8 above. By this Circular, a period of three months is 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 failu....
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....n. The goods are examined by officers and a report made thereof. Copy of the drawback shipping bills which contains details of examination report is the claim copy for the drawback. The claim is then settled and passed by the officers of the customs department. 31. We are fully conscious that the issue in this appeal is not for claim of drawback but only request for amendment of shipping bills. In fact, as per sub-clause (a) of the first proviso to Section 129A (1) of the Customs Act, 1962, the Tribunal has no jurisdiction to entertain an appeal if the order relates to payment of drawback under Chapter X. The fleeting glance in the above paras on the nature and scheme of duty drawback is only to equip ourselves while considering the huge delay on the part of the 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 ap....
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....n'ble Apex Court in Govt. of India Vs. Citedal Fine Pharmaceuticals - 1989 (42) ELT 515 (SC) which has been already captioned in the above decision. The relevant portion of the order is reproduced as under:- "4. We have considered the submissions made by both sides. We observe that no period of limitation has been prescribed under Section 61(3). A reasonable period of limitation will have to be read under this section as held by the Hon'ble Supreme Court in the case of Government of India v. Citedal Fine Pharmaceuticals - 1989 (42) E.L.T. 515 (SC). This Tribunal in number of cases where the demands were raised under Rule 57-I at a time when no period was prescribed for recovery of Modvat credit has held that the reasonable period of limitation would in that case would be six months or five 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 thi....
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....rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 1962. Here also we observe under Section 28 of Customs Act, 1962 period of limitation prescribed for recovery of duty is six months or five years as above and also the period for claim of refund is also six months. The position being similar we hold that the same logic should apply in respect of the recovery to be made 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 rele....
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....tation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the Legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further. 14. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature 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 furthe....
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....The application dated 9.10.2015 contains request for amendment of Shipping Bills for the year 2012 to 2014. It gives details of shipping bills for three years (Jan. 2012 to Dec. 2014). The second application dated 25.1.2016 made by the appellant is only an afterthought by which appellant has included Shipping Bills from the year 2000 to 2011. We hold that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper." 4.5 Similarly in case of Carboline India Pvt. Ltd [2022 (381) E.L.T. 397 (Tri. - Chennai)] relying on the above decision, tribunal has held as follows: "10. The issue is with regard to the rejection of the request for conversion of free shipping bills to advance authorization scheme shipping bills. Section 149 of the Customs Act, 1962 which deals with conversion / 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 ci....
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....stence 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 the DGFT/MOC. The conversion may be allowed subject to the following further conditions: a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO). b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be. d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion. 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 aga....
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..... Vs. CC, Chennai reported in 2021 (12) TMI 393 - CESTAT Chennai followed the decision of the Hon'ble jurisdictional High Court to hold that the Board circular cannot be pressed into application to deny the request for conversion of shipping bills. 13. The Hon'ble High Court of Kerala in the case of Parayil Food Products Pvt. Ltd. Vs. Union of India reported in 2020 (10) TMI 1141 - Kerala High Court had considered the very same issue and held that when section 149 does not prescribe any time limit, the request for conversion cannot be denied by application of the Board circular. The relevant para is reproduced as under:- "8. For the purpose of issuance of No Objection, provisions of Section 149 of the Customs Act, 1962 envisage the complete procedure for issuance of no objection certificate, i.e. for the purpose of amendment of a bill of entry or a shipping bill only after fulfilling certain conditions in the proviso. The same read thus: 149. Amendment of documents.-Save as otherwise provided in sections 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: ....
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....stated that the goods are exported under advance authorization. The code has been noted as "00" instead of "01". 15. Section 149 is a provision which permits the importer / exporter to request for amendment of documents for the mistakes that may have happened while filing the documents. When an application for amendment is received, if it is very much clear from the documents that the mistake was only an inadvertent mistake and there is no attempt of fraud or mis-statement to evade duty, the request for conversion ought to be allowed. 16. The Tribunal in the case of Autotech Industries (India) Pvt. Ltd. (supra) had observed that the amendment is only a procedural issue. In the present case, the documents itself establish that these were inadvertent mistakes. 17. The Hon'ble High Court of Madras in the case of CC Vs. Diamond Engineering (Chennai) Pvt. Ltd. - 2019 (5) TMI 492 - Madras High Court had occasion to consider similar issue wherein substantial questions of law were taken up for consideration which are as under:- "(i) Whether the 2nd respondent tribunal was right in holding that the 1st respondent is entitled to the benefit of the Circ....