TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 527
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder [order-in-original no. 38/2022-23/CC/NS-II/CEAC/CAC/JNCH dated 22nd August 2022]. 2. It was the claim of the appellant that, in shipping bill no. 2581106/07.05.2020, 3582060/03.07.2020, no. 5497599/28.09.2020, no. 6870697/30.11.2020, no. 7950958/16.01.2021 and no. 8628779/13.02.2021 for export of 'ciprofloxacin tablets', they had inadvertently omitted to include details of the 'advance authorisations' as also in the tax and commercial invoices and, instead, were declared as 'scheme code 19' for drawback entitlement against the eligible 'scheme code 03' for the said scheme in the Foreign Trade Policy (FTP). The request, under section 149 of Customs Act, 1962, was rejected by drawing upon the framework of circular [no. 36/2010-Cus dated 23rd September 2010] of Central Board of Excise & Customs (CBEC) - as it then was - ostensibly owing to such being binding on all customs officers and, apparently, stemming from the injunction therein that '3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n section 149 of Customs Act, 1962 only by Finance Act, 2019 with similar incorporation in section 157 of Customs Act, 1962 at the same time. It was pointed out that Shipping Bill (Post export conversion in relation to instrument based scheme) Regulations, 2022 was notified only with effect 22nd February 2022. Several decisions that had occasion to delve into the statutory restrictions and setting aside of rejection of amendment requests were cited by Learned Counsel. 5. Our attention has been drawn to the decision [order dated 23rd August 2023 disposing off writ petition no. 2010 of 2022] of the Hon'ble High Court of Bombay in Colossustex Private Ltd and others v. Union of India and others striking down the restrictions in the circular for lack of statutory authority and disinclination to accept the contention of the respondents that these restrictions should be read into subsequent statutory empowerment. Consequently, the rejection in the impugned order is not just jeopardized but stultified. 6. The scope of section 149 of Customs Act, 1962 is statutorily circumscribed by the framework of the provision. It is intended for rectification of documents issued by parties to a commer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the appellants herein addressed to the jurisdictional Commissioner of Customs and which, in turn, was prompted by the notice issued to the appellants herein by the authority empowered under the Foreign Trade Policy (FTP) for remedial action. Besides being a justification for the elapse of time in seeking recourse to section 149 of Customs Act, 1962, the stage in the sequencing offers a clearer perspective of the consequence, if any, of acceptance of the request for amendment. This is an aspect that, of necessity, is to be addressed by us as, even though the ostensible ground for rejection was the threshold bar of limitation prescribed in the impugned circular of Central Board of Excise & Customs (CBEC), the discussion in the impugned order did venture to consider the examination norms that exports against 'free shipping bills' are relieved of. 7. Requests for conversion of 'shipping bills' fall into five broad categories: from 'free' to 'drawback', 'free' to 'scheme', 'scheme' to 'drawback'. 'drawback' to 'scheme', and 'scheme' to 'scheme' and it is common ground that 'free shipping bills' are not burdened by norms of examination while all others are. The impugned order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the person who filed the document(s). The proviso applies specifically to contents of bills of entry and shipping bills in which changes are to reflect only the documents existing at the time of clearance for home consumption/deposit in warehouse or clearance for export, as the case may be. Therefore, denial by recourse to a finding other than on the specific amendment requested by an importer/exporter would be tantamount to traversing beyond the framework of statutory empowerment. 9. Doubtlessly, the physical characteristics of goods covered by bill of entry/shipping bill can be authenticated only in consonance with the report of examination, if any, but that is not the request made by the appellant herein or the cause of rejection adverted by the competent authority. The plea is for alteration of the category of the bills to that of the scheme of export which the appellant claims to have been operating under. A finding on the inappropriateness of the request made by the appellant has not been rendered in the impugned order.' and by drawing upon '13. The decision of the Tribunal in Haldiram Foods International Pvt Ltd vs. Commissioner of Customs, Nagpur disposing of ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he special dichotomy of the prescription for making the entry from the documents evincing the entry. This cleaving appears to have been intended to justify further limitation on the generality of empowerment to permit amendments in disposal of requests pertaining to bills of entry/shipping bills by freezing the moment of clearance/exportation as the touchstone. The distinction is attributable to source; 'documents' 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve, we turn to the legislative authority for such prescriptions as well as the chronological evolving of a uniform approach to guiding such facilitation. Circular no. 36/2010-Cus dated 23rd September 2010 was preceded by circular no. 4/2004- Cus dated 16th January 2004 of Central Board of Excise & Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appellant to the Commissioner of Customs. 14. It is evident that the impugned order is bereft of a comprehensive appreciation of the schema of amendment to, and conversion of, shipping bills, as elaborated in our discussions supra. The cryptic, and even peremptory, disposal of the request, without conforming to the reasonableness and judiciousness, mandated by section 149 of Customs Act, 1962 and disregarding the spirit in which the guidance was offered in the circular of Central Board of Excise & Customs, is not an outcome of responsible discharge of authority devolving upon the Commissioner of Customs. The applicant was not informed of the deficiencies, if any, that precluded them from being eligible for conversion; nor were they afforded an opportunity to demonstrate that their eligibility for coverage under the intended scheme was unimpeachable. 15. Considering the limited, and unacceptable, ground on which the application was rejected, we are unable to decide on the claim of eligibility for conversion. It would, therefore, be appropriate that the impugned order is set aside for the application to be returned to the Commissioner of Customs and, in the light of our obs....