TaxTMI 
TaxTMI 
2024 (4) TMI 1098
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.... petroleum products to M/s. Nepal Oil Corporation through Raxaul LCS by filing free shipping bills. Similarly, during the period from 19th June, 2003 to 26th May, 2004, the appellant had exported petroleum products through Jogbani LCS by filing free shipping bills. 2.1. The appellant learnt that vide Notification No. 39/2003-Cus. dated June 19, 2003 they are entitled to claim drawback benefit against the export of petroleum products to M/s. Nepal Oil Corporation. Accordingly, they filed applications dated 12.08.2004 and 24.04.2007 requesting for conversion of the free shipping bills to drawback shipping bills. 3. The request of the appellant was denied vide Order-in-Original dated 01st November, 2007. 4. On appeal, the Tribunal vide Final Order No. FO/75188/2016 dated 17.02.2016 remanded the matter back to the adjudicating authority with the observation that powers given by the Statute under Section 149 of the Customs Act cannot be curtailed by a Circular issued by CBEC. Accordingly, the Order dated November 1, 2007 was set aside and remanded to allow the conversion of free shipping bills to drawback shipping bills under Section 149 of the Customs Act, if otherwise permissible, ....
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.... 149 of the Customs Act clearly permits amendment of shipping bill on the basis of documentary evidences which were in existence at the time the goods were exported; the said documents need not be available at the end of the Departmental authorities; that no other condition has been placed under Section 149 of the Customs Act for allowing amendment or conversion of the shipping bills. Accordingly, the appellant submits that denial of conversion by the adjudicating authority in the impugned order amounts to not following the directions of the Tribunal in the Final Order dated 17.02.2016. In support of their contention, the appellant relies upon the decision in the case of Hewlett Packard Enterprise India (P.) Ltd. v. Jt. Commr. of Cus., Chennai [2021 (375) E.L.T. 488 (Mad.)]. 6.1. They further submit that the adjudicating authority has held that physical examination of the goods had not taken place at the time of export and hence concluded that conversion cannot be considered without examination of the goods exported. In this regard, the appellant submits that there is no requirement for examination of the goods for the purpose of allowing drawback; Section 149 does not prescribe a....
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....bills, the goods need to be examined; in the present case, the assessing officer has also not examined all the documents at the time of allowing the export. Hence, he contends that conversion of the shipping bill at this stage cannot be considered. Accordingly, he supported the impugned order. 8. Heard both sides and perused the appeal documents. 9. We observe that Notification No. 39/2003-C.E.(N.T.) allows drawback on petroleum products. The appellant has exported petroleum products to M/s. Nepal Oil Corporation and hence, they are eligible for the benefit of duty drawback as provided in the aforesaid Notification. The appellant could not claim the drawback benefit because they had not filed the drawback shipping bill at the time of export. The appellant has filed applications dated 12.08.2004 and 24.04.2007 requesting for conversion of their free shipping bills to drawback shipping bills. When their request was not considered, they approached the Tribunal and this Tribunal vide Final Order No. FO/75188/2016 dated 17.02.2016 has categorically directed the adjudicating authority to allow the conversion of free shipping bill into drawback shipping bill subject to the satisfaction ....
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....ed in the Customs House. By the application of conversion of the Shipping Bill, appellant was requesting the proper officer, to exercise this statutory power vested in such authority, to amend a Shipping Bill. The statutory condition subject to which such amendment could or could not be made is described in the proviso to Section 149 of the Customs Act, 1962, which reads as: "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 exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." It is not in dispute that the requirements of abovementioned proviso are satisfied by the appellant and consequently Commissioner ought to have allowed the request for conversion instead of "bound" by the terms of a Board circular which laid down certain situations, only in which conversion was permitted. That the appellants' case was not specifically covered by one of the situations contemplated in the Board&....