TaxTMI 
TaxTMI 
2023 (10) TMI 437
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....n. It procures all raw materials/ inputs locally from the DTA. Almost all the production of appellant was being exported out of India. 3. Appellant had applied for Duty Free Import Authorisation (DFIA) and obtained 13 DFIA scripts from the DGFT, Rajkot during the period from 17.09.2013 to 15.01.2014. It had entered details of the said scripts in 42 shipping bills filed for export of goods at MP & SEZ port, Mundra as shown below to claim fulfillment of the export obligation. Sr. No . DFIA License No.& date S/B No. Date of S/B Sr. No. DFIA License No.& date S/B No. Date of S/B 1 2410039936 17.09.2013 7586312 21.09.13 8 2410040133 21.10.2013 8469205 16.11.13 7590297 21.09.13 8469208 18.11.13 7608009 23.09.13 8550013 21.11.13 8550011 21.11.13 2 2410039937 17.09.2013 7716828 28.09.13 7716838 28.09.13 9 2410040134 21.10.2013 9165116 26.12.13 7734539 30.09.13 9165115 26.12.13 9215351 26.1....
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....herefore, it had no other option but to surrender DFIA scrip to the DGFT for cancellation. Accordingly, it had surrendered all 13 original DFIA scripts along with EODC/Transferability letters (if any issued) for the purpose of cancellation before Regional Authority, DGFT, Rajkot vide different letters which are part of appeal memorandum and acknowledgement issued by DGFT. Appellant had applied before the Principal Commissioner, Customs, MP&SEZ Mundra port, Custom House, Mundra for conversion of said 42 shipping bills from DFIA to Drawback Scheme by way of amendment vide letter dated 12.07.2017. 6. The learned Commissioner however rejected its request for conversion of 42 shipping bills from the scheme of DFIA to Drawback vide letter dated 19.01.2018. And therefore aggrieved by the order, appellant has filed the present appeal on various grounds as below:- 6.1 Learned Commissioner has failed to appreciate that various incentives are offered through different schemes by the government from time to time in the EXIM Policy to promote export of goods from India and to encourage the exporters with a view to maximize foreign exchange earnings for the nation. That both the schemes i.e. D....
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....he 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 against him in respect of such exports. 4. Free shi....
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....to DFIA scheme - Time-limit - Rejection of request on ground that request after three months from date of Let Expert Order (LEO) not proper - No time-limit prescribed under Section 149 of Customs Act, 1962 - Appellate Tribunal correctly holding that exporter eligible for conversion - Section 149 of Customs Act, 1962. [paras 5, 6] GOKUL OVERSEAS Versus UNION OF INDIA - 2020 (373) E.L.T. 49 (Guj.) EXIM - Shipping Bill - Amendment of - Omission to file 'declaration of intent' within three months from date of Let Export Order as stipulated in C.B.E. & C. Circular No. 36/2010-Cus., dated 23-9-2010 - HELD : Eligibility of assessee to claim benefits under Merchandise Exports From India Scheme (MEIS), not doubted - Application for amendment filed after prolonged inter se communications between respondents regarding jurisdiction to entertain application - Decision in Kedia (Agencies) Pvt. Ltd. [2017 (348) E.L.T. 634 (Del.)] squarely applicable - Omission to file 'declaration of intent' when all other relevant material available, not fatal to assessee's case - All other respects, viz. goods conform to description in shipping documents and value, etc., continues to be ascertainable becaus....
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....rticle 226 of Constitution of India. [paras 18 to 40) Shipping Bill - Amendment of - Limitation - Inadvertent omission of declaration as per Clause 3.14 of Handbook of Procedures, 2015-20 in shipping bills - HELD : No restriction in Section 149 of Customs Act, 1962 for not allowing amendment after goods are exported unless goods are checked at time of export - Hence, authorities cannot introduce such restrictions de hors said provision - Well-settled that subordinate legislation cannot travel beyond parent statute or impose limitation or restriction not found in parent statute - Therefore, no time limit can be read into Section 149 ibid nor can be introduced by way of circular - Section 149 of Customs Act, 1962. [para 21] KEDIA (AGENCIES) PVT. LTD. Versus COMMISSIONER OF CUSTOMS - 2017 (348) E.L.T. 634 (Del.) Shipping Bill - Amendment thereof - Insertion of declaration in free shipping bills to avail Export incentive - Denial of - Appellant exporting Cutch Block (Acacia Catechu) under free shipping bills without making statutory declaration required to avail benefits under Vishesh Krishi Gram Upaj Yojna (VKGUY) - His subsequent request for amendment of shipping bill for inse....
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.... OF CUSTOMS, CHENNAI in 2011 (269) E.L.T. 378 (Tri. - Chennai) Shipping Bills - Conversion from DFIA scheme to DEPB scheme - Jurisdiction of Customs officers - Conversion rejected by authorised officer and appeal thereagainst also rejected by Commissioner (Appeals) - Submission that DFIA not utilized and the same has been surrendered and hence cancelled by DGFT - Cancellation letter not before authorities below - As per Board's Circular, dated 16-1-2004 jurisdictional Commissioner only empowered to allow conversion - Matter remanded to jurisdictional Commissioner to decide afresh. [para 2] Shipping Bills - Conversion of Shipping Bills from one export promotion scheme to another - Jurisdiction - As per Board's Circular, dated 16-1-2004, jurisdictional Commissioner alone empowered to allow such conversion subject to conditions - Neither authorized officer nor Commissioner (Appeals) authorized to deal with case of conversion from one export promotion scheme to another. [para 2] Appeal allowed Appellant further invites attention towards a similar judgment in the case of MAN INDUSTRIES (INDIA) LTD. VS COMMISSIONER OF CUSTOMS (EP): 2006 (202) E.L.T. 433 (Tri. - Mumbai) which was ....
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....me Court in the case of Collector of Central Excise, Patna v. Usha Martin Industries , wherein it was held that: 21. Through a catena of decisions this Court has pronounced that Revenue cannot be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the department, more so when others have acted according to such instructions, The Supreme Court thus makes it clear that while a benevolent Circular is binding on the department and an assessee is always entitled to dispute the applicability & correctness of a Board's Circular. By application of this principle, it ought to be held that even if the appellants' case did not fall within four corners of the Board's Circulars in question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts and circumstances of the case, particularly the undisputed position that the entire claim for conversion of the Shipping Bills was based on documentary evidences in form of Chartered Eng....
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....OLOGUARD MEDICAL DEVICES PVT. LTD. Versus CC (SEAPORT), CHENNAI - 2007 (216) E.L.T. 62 (Tri. - Chennai) 6.5 Appellant in view of the above submits that in accordance with the Board's above circular and settled position of law, the learned Commissioner was only required to satisfy himself 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 i.e. Drawback to which conversion has been requested. It is more so because it is not a case that appellant had not physically exported the goods or that description/classification of goods was mis-declared or that specified goods were not exported or that appellant had already availed any benefits under DIFA scheme. Besides, the required documents such as Bills of Lading, Shipping Bills, B.R.C. showing realization of sale proceed of exported goods, etc. specifically indicate that the goods which were cleared for export were printed cotton fabrics falling under CTSH 52085290 of the First Schedule to the Central Excise Tariff Act, 1985. Thus, in the instant case it had fulfilled criteria laid down under proviso to Section 149 of the Customs Ac....
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.... including on the validity of CBEC No. 36/2010-Cus. dated 23.09.2010 for indicating that the 3 months period prescribed in the same has been struck down by the Hon'ble Gujarat High Court in the matter of Principal of Commissioner, Customs, Mundra Vs. Likes Ltd as reported in 2021 (377) ELT 646 (Guj.) which has been reiterated by the Hon'ble Bombay High Court in Colossuster Pvt Ltd Vs. Union of India-2023 (9) TMI 313. In which Hon'ble High Court of Bombay has also struck down the limitation of 3 months from the let export order in aforementioned circular. With the point of emphasis of the appellants being that the amendment should have been allowed in the shipping bill to them from DFIA Scheme to Drawback as claimed by them and the denial of the same through amendment or otherwise as export benefit was totally unfair and not maintainable . They rely on para 5 of Board Circular which has not been struck down and which is reads as follows:- "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 shipp....
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.... submissions made by both sides and I find that the submissions made on behalf of the Appellant needs to be accepted for more than one reason as under. 8.1 I find that DFIA in terms of Para 4.2.1 of Export-Import Policy, issued is to allow duty-free import of inputs, fuel, oil, energy sources, catalyst which are required for production of export product. Similarly, Para 4.2.6 shows that once export obligation has been fulfilled, request for transferability of Authorisation or inputs imported against it may be made before concerned authority. Once, transferability is endorsed, authorisation holder may transfer DFIA or duty-free inputs. Para 4.28(e) of HBP Vol. I, 2009-14 allows cancellation of DFIA when there is no imports made against exports and allows assessee to approach customs for conversion of Shipping Bill under Drawback scheme, for which no time limitation is provided by DGFT. 8.2 I find that Rule 12(1)(a) of Drawback Rules require an exporter to declare on the Shipping Bill, 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 and make a declaration on the relev....
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....er exports against DFIA scheme, there was no import by the appellant. Since Appellant could not fulfill export obligation, Appellant requested DGFT for cancellation of DFIA in terms of Para 4.28(e) of HBP Vol. I, 2009-14 vide their request, dated 28-6-2013. Para 4.28(e) ibid is reproduced : In case an exporter is unable to complete EO undertaken in full and he has not made any import under Authorisation, Authorisation holder will also have an option to get the Authorisation cancelled and apply for drawback after obtaining permission from Customs authorities for conversion of shipping bills to Drawback Shipping Bills. (e) Considering no imports made against said DFIA, DGFT, New Delhi cancelled DFIA No. 0510306798, dated 31-10-2011 in terms of Para 4.28(e) of HBP Vol.-I, 2009-14 vide their communication, dated 10-7-2013. Thus, in such facts, appellant could have applied for conversion only after getting cancellation of the said DFIA. The appellant applied for such conversion immediately on 20-7-2013, which is within 10 days of such cancellation of DFIA by DGFT. (Emphasis Supplied) 8.5 I also find that Hon'ble High Court of Mumbai in the case of Repro India Ltd. - 2009 (235)....
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....nce produced by the exporter which existed at the time of export to support the request - HELD : Circular being beneficiary in nature, issued consequently to a number of Tribunal's decisions holding that amendment of shipping bill after export is governed by proviso to Section 149 of Customs Act, 1962, which prescribes no time-limit for such conversion and if the documentary evidence available at the time of export is produced such conversion needs to be allowed - Circular No. 36/2010-Cus., dated 23-9-2010 and Section 149 of Customs Act, 1962. 8.10 I find that in the relied upon decisions on behalf of appellant, 2010 (259) E.L.T. 295 (Tri.-Ahmd.) and recent Order No. A/10565/2014, dated 9-4-2014 in Appeal No. C/39/2012-DB in case of Essar Oil Ltd., Division Bench of this Court has also allowed conversion of Shipping Bill from Free scheme to Drawback scheme considering exports made, Rule 12(1) of Drawback Rules and Section 149 of the Customs Act, 1962. Ld. Departmental Representative's reliance on the judgment of Hon'ble High Court in the case of 9. Commr. of Cus. (Seaport-Export), Chennai v. Suzlon Energy Ltd. reported in 2013 (293) E.L.T. 3 (Mad.) may not carry the case of th....