TaxTMI 
TaxTMI 
2025 (6) TMI 1851
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....the deployment thereof in the finished goods, learnt that, in shipment, covered by the impugned shipping bill, erroneous reference had been inserted. 2. Learned Counsel for the appellant submitted that the disposal of their application was not consistent with the provisions of law and had travelled beyond the scope of section 149 of Customs Act, 1962 inasmuch as the circumstances, permitting amendment therein though obtaining, had been overlooked by the adjudicating authority for which reliance was placed on the decision of the Tribunal in Posco Maharashtra Steels Ltd v. Commissioner of Customs (Export-I) [2022 (12) TMI 668 - CESTAT MUMBAI], besides certain other prior decisions rendered in disputes pertaining to the period before Regulations under section 149 of Customs Act, 1962 were notified. 3. We have heard Learned Authorised Representative who submitted that the impugned order is categorical on ineligibility for availment inasmuch as the goods had not undergone prescribed level of examination that the export category sought would have been subjected to. 4. It is seen that reliance has been placed on the 'Shipping Bill (Post export conversion in relation to instrument....
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....olicy (FTP). These two aspects were considered by the Tribunal in re Posco Maharashtra Steels Ltd thus '6. The Tribunal, having considered an identical assertion of empowerment, has, in Haldiram Foods International Pvt Ltd v. Commissioner of Customs, Nagpur [final order no. 86108/2020 dated 16th December 2020 disposing of customs appeal no. 86048 of 2020 against order-in-original no. F no. VIII (Cus) 25-159/Cus. Hqrs./2019 dated 29th October 2020 of Commissioner of Customs, Nagpur], held that '11. The request of the appellant herein has been denied for non-compliance with the circular cited in the impugned order. Appellant had been compelled to forgo coverage, and inconsistent with the law as it now appears, under a scheme in the Foreign Trade Policy that may have entitled them to post-exportation import of specified goods without payment of duty and it is only by the requested amendment that the Directorate General of Foreign Trade could consider extending that privilege to them. Approval of the request would exclude them from the reimbursement, contractually stipulated, in section 75 of Customs Act, 1962 and, therefore, entails recourse to section 149 of Customs....
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....exported. Neither of the circulars claim to draw sustenance from any statutory enablement under Customs Act, 1962 and are, therefore, to be construed as guidance for trade facilitation on the part of the field formations under Central Board of Excise & Customs. 13. Central Board of Excise & Customs is, under section 151A of Customs Act, 1962, empowered to issue 'orders, instructions and directions' to officers of Customs who are required to observe and follow these; however, even when the superseding circular was communicated, such empowerment was limited to 'uniformity in the classification of goods or with respect to the levy of duty thereon' and it was only with effect from 8th April 2011 that such 'orders, instructions and directions' could encompass '.implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any provision, restriction or procedure for import or export of goods...' In the absence of such authority, which could be construed as empowerment to enforce restricted applicability, the impugned circular, as well as its predecessor, could not have imposed rigid restrictions th....
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....tion of description of the exports themselves as declared in accordance with section 50 of Customs Act, 1962 or the ascertainment recorded by customs authorities under section 51 of Customs Act, 1962. That the goods exported are such as have been manufactured by deploying the capital goods permitted for import under the licence envisaged in the 'zero duty export promotion capital goods (EPCG)' scheme is not disputed as the bills have been cleared without objection as intended for fulfilling obligations therein. This is also not a case of intramural migration but the appending of another scheme in the Foreign Trade Policy (FTP) relating to 'inputs' to the permitted scheme for import of capital goods for manufacture of related 'output' that has, indisputably been exported. Every change sought under section 149 of Customs Act, 1962 does not, therefore, involve verification of documentary evidence in existence at the time of import or export, as the case may be. 9. Though the issue has been portrayed as befitting ascertainment within the rigour of first proviso in section 149 of Customs Act, 1962 as shipping bills were sought to be amended, the distinction between the generali....
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....y 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 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....
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....e authority under Foreign Trade (Development & Regulation) Act, 1992 scrutinizes eligibility and issues the instrument designed to achieve the objectives of the scheme by import of permitted goods to be used in manufacture of stipulated goods and furnishing of evidence of fulfillment of export obligation to the issuing authority for closure of the file concerned in the office of Directorate General of Foreign Trade; within this sequence, customs authorities are concerned with assessment of shipping bills relating to stipulated goods under section 51 of Customs Act, 1962 and, while undertaking statutory mandate of section 47 of Customs Act, 1962, with adherence of imports effected against bills of entry with the enumeration in the instrument issued by the authority under Foreign Trade (Development & Regulation) Act, 1992. As far as post-exportation variant of the scheme is concerned, it is for the authority under Foreign Trade (Development & Regulation) Act, 1992 to take a call on eligibility for the instrument specified in the Foreign Trade Policy (FTP); any which way, the jurisdictional oversight of customs authorities will not surface until the benefit of corresponding notificati....