TaxTMI 
TaxTMI 
2023 (10) TMI 1007
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....OB value as provided under Section 12(1)(a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995. He had been regularly claiming the AIR Drawback mentioning the same on the shipping bills and getting it credited to his account. 3. However, during the said period, in respect of some exports under rebate of the tax paid, their clearing agent who handles preparation and filing of ARE-1 and Shipping Bills with the customs, wrongly mentioned on the ARE-1s that these exports were against Advance licences. However, free shipping bills i.e., neither claiming the drawback or under Advance authorization were filed in respect of these ARE-1s. 4. On realizing the mistake during the verification of the records, the appellant filed two claims dt.02.01.2017 and 20.2.2017 requesting the Commissioner of Customs, Visakhapatnam to grant the drawback amounts of Rs.1,41,33,326/- and Rs.1,12,10,105/-, by allowing him to amend the shipping bills without converting them into drawback shipping bills as provided under Circular No.36/2010-Cus dt.23.11.2010. The submissions made in the letters, during the hearing and further submissions dt.21.3.2017 are as follows: (a) Though it is mentione....
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.... new facts on the shipping bills. (e) As the shipping bills were filed without claim of export benefits, same were routed through RMS without more rigorous inspection and hence, benefit cannot be claimed. 6. The impugned order is incorrect and not legal for the following reasons: 6.1. The finding that the appellant made the subject exports against 'Quantity Based Advance Authorisations' is against the facts on record. There was no QBAL scheme available at the time of export. The staff inadvertently ticked the entry in the ARE-1. The records are available with customs to check this fact, but order was passed against the facts on record of the customs. The appellant submits a certificate dt.02.08.2023 from Chartered Accountant, certifying this fact and memos for drawing of samples in respect of the subject exported goods. 6.2. The impugned order is passed without following the directions in Circular No.30/2010-Cus wherein it is clearly directed that AIR drawback may be allowed without conversion of free shipping bills into drawback shipping bills. 6.3. Discretion of the Commissioner of Customs is required only when the bills are to be converted into drawback shipping bills, but....
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....hen not specifically mentioning the intention to avail the scheme at the time of export (b) whether the amendment from free shipping bill to claiming benefit under a specific scheme would change whole nature and charter of clearance and (c) whether amendment can be allowed even after 2-3 years after the export and rejected the appeal of the Revenue upholding the order of the Tribunal in favour of the exporter. The Hon'ble Court also declared the condition of three months in the subject circular as ultra vires. 7.1.1. Similarly is the decision in the case of Gupta Enterprises vs. CC (Seaport- Exports), Chennai [2023 (7) TMI 726- Cestat Chennai], wherein, all the three grounds on which conversion/ amendment was denied to the appellant were discussed and held that denial of conversion/ amendment is not legal. 7.2. In the following decisions, contention of the revenue that the claim shall be filed within three months of export as per the circular for amendment of the shipping bills, is not accepted. (a) Isolloyed Engineering Technologies Ltd vs. CC, Export [2020 (1) TMI 165- Cestat New Delhi], wherein, conversion of free shipping bills was directed to be done without referring to t....
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....tion prescribed under Section 149 is that at the time of export the document on the basis of which the benefit of export promotion was claimed, should be existing and this condition is complied, the request for conversion of shipping bill from one scheme to another shall be allowed: (a) Atul Limited vs. CCE&ST, Surat-I [2022 (7) TMI 987- Cestat- Ahmedabad], wherein the Tribunal rejected the contention of revenue that once the shipping bill is assessed, the only way it can be changed is by way of appeal and holding that no such requirement when specific provision exists in the form of Section 149. (b) Kuruwa Enterprises and others vs. CC, Cochin [2019 (11) TMI 1052- Cestat Bangalore]. 7.5. With regards to the discretion of the officer, as held in the following cases of identical nature, approach of officer shall be giving progressive interpretation rather than conventional outlook while dealing in procedural laws. (a) Raj and Company vs UOI [2021 (2) TMI 1101- Gujarat High Court] (b) Sambhaji vs. Gangabai [2009 (240) ELT 161 (SC)] 8. In view of the foregoing submissions, it is prayed that the appeal of the appellant may please be allowed with consequential relief. 9. Oppo....
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....14 (Tri-Del)], wherein, it was held that conversion of the shipping bill was denied due to late filing of the claim for the reason that exporter was mentally disturbed during the relevant time. The Tribunal held that the said reason does not qualify under reason 'beyond control of the exporter'. He also relies on the following rulings: i) Humboldt Wedag India Pvt Ltd vs CC (Export), Chennai [2015 (327) ELT 220 (Tri-Chennai)] ii) Cargill India Pvt Ltd vs CCE, Visakhapatnam-II [2015 (325) ELT 801 (SC)] iii) Maize Products vs CC, Kandla [2018 (360) ELT 560 (Tri-Ahm)] 11. In Cargill India Pvt Ltd (supra), the Hon'ble Supreme Court examined Rule 12(1)(a) of the Drawback Rules, 1995, as well as the scope of Board Circular No. 04/2004 dated 16.01.2004, wherein, it was clarified that in terms of proviso to Rule 12(1)(a) of the Drawback Rules, 1995, the Commissioner may examine and consider individual requests pertaining to AIR (All Industry Rates) of Drawback and it would not apply to brand rate of duty drawback, where rate is claimed in terms of Rule 6 or Rule 7 of the Drawback Rules. Hon'ble Supreme Court found that the conversion of free shipping bills to drawback shipping bills ....