TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1583
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.... categorization of the shipping bills at the top of the page as 'free shipping bills' until the export obligation had been discharged and the licencing authority (Joint Director General of Foreign Trade, Pune) had pointed this out as deficiency impending the redemption thereof. 2. The request was denied for not adhering to circular no. 36/2010-Customs dated 23 rd September 2010 of the Central Board of Excise & Customs (CBEC) which restricted conversions only to certain classes of bills in which the subjective satisfaction intended by section 149 of Customs Act, 1962 could be elicited from documentary evidence available at the time of export and only if sought for within three months from the date of 'let export order (LEO)' endorsed in the shipping bills. 3. Learned Consultant appearing for the appellant contends that the limitation prescribed in the said circular is in excess of authority of law as section 149 of Customs Act, 1962, which provides for amendments to documents, does not contemplate such restriction. It was also pointed out that delay is not attributable to them as it was abundant caution on the part of the authority under the Foreign Trade Policy (FTP) competent to....
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....endency of the same, an Ordinance can also be issued.... I am afraid the action of the respondent cannot be accepted, for, it is an utter violation of statutory provision of Section 149 of the Customs Act...." ' 4. Learned Authorised Representative placed reliance on the decision of the Hon'ble High Court of Delhi in Commissioner of Customs (Export) vs. ES Lighting Technologies (P) Ltd [2020 (371) ELT 369 (Del)] wherein it has been held that '6. Having perused the impugned order and the decision is relied upon by Mr Bansal and having consider the facts of the case, we are of the view that the Tribunal was not justified in adopting the approach that it did. Merely because no time limitation is prescribed under Section 149 for the purpose of seeking amendment/conversion, does not follow that request in that regard could be made after passage of any length of time. The same could be made within a reasonable period. The conversion sought by the respondent was from free shipping bill to advance licence shipping bill. The petitioner could not have entertained the application for such conversion without examination of records. It was not fair to expect the Department to maintain, and b....
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....s concerned with episodic imports and exports in accordance with section 47 and section 50 of Customs Act, 1962 respectively that are aggregated only for closure by redemption. It is at this stage that the authentication of exports claimed to have been effected for discharge of obligation is sought for from customs authorities by the licencing authority. Consequently, it is in the administration of schemes in the Foreign Trade Policy (FTP) that the oversight of consignment-wise transaction is supplemented by authentication of the instrument-wise aggregation of shipments which should have no bearing as a decision arising from section 149 of Customs Act, 1962. By dwelling on the consequence of amendment, which lies within the remit of the licencing authority, instead of the justification for discarding the request for amendment in each of the shipping bills, it appears to us that the framework within which amending enablement is to be exercised has been exceeded. 8. From a plain reading of the statutory empowerment for '...... Amendment of documents - Save as otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document after it has bee....
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....elhi, in ES Lighting Technologies (P) Ltd, held that '6..... Merely because no time limit is prescribed under Section 149 for the purpose of seeking amendment/conversion, it does not follow that a request in that regard could be made after passage of any length of time. The same could be made within a reasonable period. ...It is not fair to fair to expect the Department to maintain, and be possessed of, the records after passage of five long years - ...' it was on the factual submission made on behalf of Revenue about non-availability of relevant documents. The reasonableness of elapse of time favoured in the judgement is, therefore, not to be perceived as endorsement of the time limit specified in the impugned circular and reliance thereof is evident misconstruing on the part of the adjudicating authority. The decision of the Hon'ble High Court of Madras in Suzlon Energy Ltd holding that '11. .....In effect, it is nothing but seeking permission to convert from one Scheme to another and it is not an amendment simpliciter in pursuant to the mistake and application of Code while entering in the Shipping Bills. Only if it is simple amendment, Section 149 of Customs Act could be p....
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....plication for amendment at the threshold. In those decisions, the Tribunal, in addition to considering the causes for seeking amendments, did also examine the potential consequences thereof that, during the relevant time, were governed by instructions of Central Board of Excise & Customs (CBEC) on the permissible scope for seeking coverage under schemes of the Foreign Trade Policy. Though the present dispute did venture to speculate upon the scale of examination, it appears to us that the final disposal of the request was hinged entirely upon the period of limitation prescribed in the relied upon instructions. 13. The decision of the Tribunal in Haldiram Foods International Pvt Ltd vs. Commissioner of Customs, Nagpur Final order no. A/86108/2020 dated 16.12.2020 disposing of appeal no. C/86048/2020 against orderin-original no. F.No. VIII(Cus) 25-159/Cus.Hqrs/2019 dated 29th October 2020 of Commissioner of Customs, Nagpur, after considering a catena of decisions, including those relied upon by Learned Authorised Representative before us here, and the series of circulars held that '9. From a plain reading of '149. Amendment of documents.- Save as otherwise provided in sections 3....
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....ts' belong to the importer/exporter and the freedom to amend those is to be unabridged save of such content the amendment of which may be detrimental to the interests of the State while bills of entry/shipping bills, being prescriptions of the State, may be allowed for amending by importer/exporter only for conformity with the factum pertaining to export/import. The rationale for distinguishing the approach to making changes in shipping bills and the ultimate consequence of shifting between schemes cannot be more blindingly apparent. 10. From our discussion supra on the legal provisions and judicial pronouncements, it emerges that amendments sought under section 149 of Customs Act, 1962 may be permitted in 'documents' subject to justification including the reasonableness of the time within which such alteration is sought to be incorporated and in bills of entry/ shipping bills alterations are to be denied only to the extent of not mirroring the facts at the time of clearance/exportation. Implicitly, the ascertain ability of the facts, and not mere elapse of time which was not considered for specifying in the legislation, is to be the factor in determining limitation. Elaboration ....
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....placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised by the exporter. The timeframe of one month, in the first of the circulars, kicking in from rejection by the Directorate General of Foreign Trade, could no longer be the benchmark and a longer span of three months from the date of 'let export order (LEO)' was considered to suffice for the exercise of such option. Hence, it is apparent that the more recent circular was intended to liberalise the migration from one scheme of the Foreign Trade Policy to another. The other conditions in both the circulars were intended to ensure that it was indeed eligible goods that had been exported. Neither of the circulars claim to draw sustenance from any statutory enablement under Customs Act, 1962 and are, therefore, to be construed as ....