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2023 (10) TMI 437
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....ad not obtained Central Excise Registration. 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.....
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....cripts and obtained further amendment to the effect that all the 13 scripts are transferable as export obligations were duly discharged. Shipping Bills were filed under claim of DFIA scheme in EDI system through its Customs Broker. 5. Appellant further submits that due to adverse market conditions for import of goods specified in the scripts nobody turned up for buying said scripts. Besides, appellant was also not required to import the said specified goods in its manufacturing process. Therefore, 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 t....
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....e 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 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 ....
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....chemes involving less rigorous examination like Drawback scheme, which is exactly the case here. Under the circumstances, it appears that learned Commissioner has grossly erred in rejecting appellant's genuine request of amendment in 42 shipping bills vide impugned order. 6.3 Appellant further submits that issue is no more res integra and fully covered by various decisions amongst other including Hon'ble High Court of Gujarat: PR. COMMR. OF CUSTOMS, MUNDRA Versus LYKIS LTD. - 2021 (377) E.L.T. 646 (Guj.) Export - Conversion from Drawback scheme 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 o....
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....cannot be said to have delayed in seeking amendment, when authorities themselves never asked writ-applicant to amend shipping bills, and only asked to remove defect as late as in August, 2018 - Eligibility to claim benefits under MEIS undisputed since export of notified goods to notified countries carried out as per scheme of MEIS - Also, same goods exported prior to Foreign Trade Policy, 2015-20 and benefits under Focus Market Scheme (FMS) availed by writ applicant - Therefore, merely for technical or procedural lapse, writ applicant not to be denied substantive benefits - Article 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 limi....
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.... DFIA when no imports made against exports and allows assessee to approach Customs for conversion of shipping bill under drawback scheme - No time limitation provided by DGFT - Section 149 of Customs Act, 1962 permits amendment of shipping bill without any such time-limit even after export of goods - Appellants could have applied for conversion only after getting cancellation of DFIA, which he did within 10 days of cancellation of DFIA by DGFT - Impugned order set aside - Conversion of DFIA shipping bills to drawback scheme allowed. [paras 8.1, 8.2, 8.4, 10] Appeal allowed ITC LIMITED Vs. COMMISSIONER 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 ....
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.... statutory obligation of the proper officer to amend a document after its presentation in the Custom House cannot be curtailed or set to naught by circulars of the Board. The approach adopted by the Respondent has the effect of inferring from & conferring upon the Board Circular, a status of a statute overruling the proviso to Section 149 of the Customs Act, 1962 which is impermissible. 2.2 The Commissioner has clearly overlooked only circulars which are benevolent to the assessee that are binding upon the department and not circulars which seek to curtail statutory rights. This proposition is clearly laid down by the Hon'ble Supreme 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 tha....
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.... • AMRITSAR SWADESHI TEXTILE CORP. P. LTD. Versus C.C., BANGALORE: 2008 (224) E.L.T. 415 (Tri. - Bang.) Appeal filed by the Revenue against the above cited order of Tribunal was also dismissed by Hon'ble High Court of Karnataka as reported at 2011 (273) E.L.T. A87 (Kar.). • PARLE PRODUCTS PVT. LTD. Versus COMMISSIONER OF CUSTOMS, NHAVA SHEVA-II: 2017 (358) E.L.T. 341 (Tri. - Mumbai) • SUZLON ENERGY LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI: 2013 (295) E.L.T. 717 (Tri. - Chennai). • CHERMA'S EXQUISITE LTD. Versus COMMR. OF CUS. (EXPORTS), CHENNAI: 2013 (288) E.L.T. 545 (Tri. - Chennai) • PATODIA SYNTEX LTD. Versus COMMISSIONER OF CUSTOMS, RAIGAD: 2004 (176) E.L.T. 189 (Tri. - Mumbai) • SOLOGUARD 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 ex....
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....had surrendered unutilized DFIA after the export was made by them of Cotton Printed Fabrics, during September 2013 to January, 2014 vide their request application dated 13.07.2017 to Joint DGFT Rajkot for cancellation of unutilized DFIA so as to allow them to claim draw back benefit. It is stated position that despite vigorous follow up with the office of Joint DGFT, Rajkot for cancellation, the same has not met with any response and is pending till date. Therefore, being in denial of any of the benefit, the appellants approached for amendment of Shipping Bills to claim draw back benefit which has been denied to them without affording any opportunity or reasons for denial of the claim even by the Customs. The appellants, therefore, have made various detailed submissions 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.....
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....eds to be allowed or otherwise, when such application filed on 20-7-2013 is made after the goods have been exported, no imports are made against such DFIA and cancellation of such DFIA on 10-7-2013 by DGFT. (Emphasis Supplied) 7. The undisputed facts are that documents relating to the exports i.e. Invoice, Shipping Bills, Bills of lading and the Bank Realization Certificate clearly indicate that the goods were exported and said goods were described in documents as "Indian Raw Cotton Shankar-6 of CTH 5201". It is also undisputed that the appellant has exported the said goods and subsequently not imported any goods as per the DFIA, which has been cancelled by DGFT on 10-7-2013. Thus, there will be no imports under the said DFIA. 8. On this factual background, I have to consider the 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 show....
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....on of India, Shipping Bills were signed & cleared by proper Customs officers and Bills of Lading, BRC for realisation of currency, etc. specifically indicate that the goods which were cleared for export were "Indian Raw Cotton Shankar-6 of CTH 5201". Perusal of the analytical certificate given by M/s. Cotton Association of India seems to co-relate the goods in the shipping bills wherein the description was given as "Indian Raw Cotton Shankar-6 of CTH 5201". 8.4 Appellant's submission of non-observance of provisions of Rule 12(1) of Drawback Rules could also be treated beyond their control, when export, as claimed by appellant, was only to China on "quota basis" and when such quota for export to China had been exhausted by other such exporters, there was no possibility for appellant to export any other quantity to China. After 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....
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.... "Description of goods in Shipping Bill had to be taken as one covering goods which were exported - Since that description was exactly as mentioned in DEPB schedule, application for conversion had to be considered sympathetically, and allowed - It was more so as EXIM policy was designed to encourage exports and in facts of case liberal view was called for." 8.9 I find that in the relied upon decisions on behalf of appellant, 2013 (288) E.L.T. 265 (Tri.-Chennai) - Diamond Engg. (Chennai) P. Ltd. v. CC, Bench has allowed conversion from DEEC to DEPB observing as under :- EXIM - Shipping bill - Conversion from "Advance Licence to DEPB Scheme" - Request made after more than one year of export - Request rejected on the ground that Circular No. 36/2010-Cus., dated 23-9-2010 permitted conversion within three months from the date of 'Let Export' order and no documentary evidence 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 A....
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....s Court has taken view that conversion can be allowed in such cases, I do not find any reason to deviate from such a view already taken. Accordingly, in view of the foregoing, I set aside the impugned order and direct lower authorities to convert DFIA Shipping Bills in this appeal to drawback shipping bills. I also make it clear that I have allowed only conversion into drawback Shipping Bills and eligibility of the appellant to the amount of drawback and its quantum, etc. would be decided in accordance with the law by the appropriate authorities of customs." 8.1 The above decision acknowledges that in normal course conversion could have been applied only after cancellation by DGFT. Appellant thus having waited for long for cancellation correctly applied for conversion to Customs authorities. However, denial of export benefit despite delay and non response by the DGFT authorities makes the rejection letter of Commissioner improper. We, therefore quash the rejection letter and direct lower authorities to convert DFIA Shipping Bills to Drawback Shipping Bills as are involved in the present appeal. Due to unprecedented delay on the part of DGFT authorities, the appellants cannot be ....