TaxTMI 
TaxTMI 
2024 (2) TMI 313
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.... apply for conversion of shipping bill from DFIA to DBK Scheme and after receipt of NOC, the appellant had applied for conversion of shipping bill from DFIA Scheme to DBK Scheme, therefore, the same should not be rejected on the ground of time bar. 2.1 Without prejudice, he further submits that three month time prescribed by the Board Circular does not have legal sanctity and non-compliance of such timeline cannot be the reason of rejection of conversion of DFIA shipping bill to DBK shipping bill. In support he placed reliance on the Gujarat High Court judgment in the case of Principal Commissioner of Customs, Mundra vs Lykis Ltd. 2021 (377) ELT 646 (Guj.). He also placed reliance on the following judgments: VRA Cotton Mills P. Ltd. 2014 (309) ELT 100 (Tri. Amd.) Malabar Extrusions Pvt Ltd. 2023 (383) ELT 404 (Ker.) 3. Shri Anand Kumar, learned Superintendent (Authorized Representative) appearing for the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submission made by both the sides and perusal of records, we find that except the limitation, there is no other dispute about conversion of DFIA Scheme to DBK Scheme....
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....hat in the identical case of Bectors Food Specialities Ltd (Supra) this Tribunal, Chandigarh after considering the Hon'ble Gujarat High court judgment in the case of Anil Sharma Vs. Union of India-2017 (350) ELT 322 (Guj.) held that the assessee was entitled for conversion of shipping bill from DBK Scheme to DFIA Scheme. We after going through the said decision find that the circumstances and reason for delay in filing request for conversion was almost identical in the present case. In the case cited of co-ordinate Bench of this Tribunal Mumbai dealing with the identical issue in the case of Parley product Pvt. Ltd (Supra) on the fact that the conversion of drawback shipping bill to DFIA shipping bill was after 2 years, wherein it was held that no time limit provided under section 149 of Customs Act 1962." The aforesaid order has been challenged by the Revenue before the Hon'ble Gujarat High Court in the judgment reported at Lykis Limited 2021 (377) ELT 646 (Guj.) dealing with one of the specific issue of limitation of three months passed the following order. "This appeal under Section 130 of the Customs Act, 1962 [for short 'the Act, 1962'] is at the instance of the Re....
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.... Circular cannot prescribe particular time period, which is otherwise not provided in a statute. The Tribunal while allowing the appeal of the respondents herein observed as under :- We have heard both the sides and perused "4. the records. We find that the appellant has sought for the conversion of Drawback shipping bills to DFIA shipping bills, in terms of Section 149 of Customs Act, 1962 which reads as under :- Amendment of documents. "149. - 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. Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorized 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 of the goods were cleared, deposited or exported, as the case may be." From the above Section, it is clear that no 4.1 time limit is prescribed. We find that the request of the appellant for conversion ....
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....and the same is also upheld by the Supreme Court; 2008 SCC Online SC 22 = 2008 (226) E.L.T. 16 (S.C.). 7. In the result, this appeal fails and is hereby dismissed. Order in civil application :- 8. As the appeal has been dismissed, the connected Civil Application also would not survive. The same is disposed of accordingly." The similar issue has been considered by this Tribunal in the case of VRA Cotton Mills Pvt. Ltd. (supra) wherein following has been observed: "5. Hearing submissions made at length by both sides and perusing relevant case records. It is seen that there is no dispute on the facts of case. Appellant was issued DFIA. Appellant has exported 10 consignments of Raw Cotton of CTH 5201 under cover of DFIA Shipping Bills. Since Appellant could not fulfill export obligation, they requested DGFT, for cancellation of DFIA in terms of Para 4.28(e) of HBP Vol. I, 2009-14 and considering no imports made against said DFIA, DGFT New Delhi cancelled DFIA on 10-7-2013. After cancellation of the said DFIA, appellant requested the Commissioner of Customs (Prev), Jamnagar for conversion of Shipping Bill from DFIA to Drawback scheme on 20-7-....
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....ng materials service tax, etc. no separate claim for rebate of duty has been made. The Commissioner is empowered to allow Drawback on Shipping Bills which may not contain any of these details. The provisions of Rule 12(1) of Customs & Central Excise Duties Drawback Rules, 1995 (Drawback Rules) and also proviso empowers the Commissioner to condone non-observance of provisions of Rule 12 and allow Drawback. This is nothing but an amendment or conversion of the Shipping Bill filed. The circular issued by the Board goes beyond the Rules. In fact Section 149 of Customs Act, 1962 clearly permits amendment of Shipping Bill without any such time limit even after export of goods. The section is reproduced below : "Section 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 custom house to be amended : Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exp....
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....of the Government is not to export taxes but only to export the goods. In the case in hand, if the duty drawback is not allowed to the appellant, the appellant is perforce required to export the taxes, which gets included in the FOB value. In my view, this being not the intention, conversion of Shipping Bills from DFIA to Drawback Scheme needs to be allowed. 8.6 The provisions of Para 4.28(e) o f HBP Vol.-I, 2009-14, Rule 12 of Customs, Central Excise Duties and Service Tax Drawback Rules and Section 149 of the Customs Act, 1962 has not specifically prescribed any such time limitation of 3 months for applying for the conversion of Shipping Bill. 8.7 I find that in the relied upon decisions on behalf of appellant, 2012 (281) E.L.T. 173 (Ker.) - Leotex v. UOI, the Hon'ble High Court has allowed conversion from DEPB to Drawback Scheme observing in Para 4 as under "Circular dated 23-9-2010 is not mandatory at all. In fact, the latest Circular dated 23-9-2010 shows that in view of the decisions of the Tribunal and this court on the question, the Government themselves had decided to liberalise the provision regarding even conversion from one scheme to another."....
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....eason that in the said case, conversion was sought from one export benefit scheme into another after importing the goods under DEEC & EPCG and conversion of Shipping Bills. I find that the Hon'ble High Court have perused the Circular No. 36 of 2010, dated 23-9-2010 and observed in Para 17 as under :- "No doubt, the issue has been considered by the Board in detail and it is stated therein that conversion should be permitted in accordance with the provision of Section 149 of 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 and that the goods were eligible for the export promotion scheme to which conversion has been requested" I find that facts of the said case are totally different than the issue in hand. I find that on deeper perusal of the judgment, it transpires that supporting evidences were not in existence at time of export of goods. In view of this, I find that the Hon'ble High Court has taken a view in facts of the said case, which may be applicable in situation which is similar or identical case. For the case i....