TaxTMI 
TaxTMI 
2023 (8) TMI 1673
X X X X Extracts X X X X
X X X X Extracts X X X X
....availing the benefit of Notification No. 79/2017- Cus dated 13.10.2017, under the Advance Authorization scheme on the basis of the Advance Authorization No. 0210207855 dated 13.09.2017. In order to fulfil the corresponding export obligation attached to the advance authorization referred above, the appellant had, inter alia attached 26 shipping bills of different dates with the Advance Authorization No. 0210207855 dated 13.09.2017. While the fulfilment of export obligation attached to the advance authorization was in progress, the appellant received a communication dated 6th July 2018 from the Directorate of Revenue Intelligence (DRI) with respect to the said advance authorization alleging violation of the pre-import condition in the matter of fulfilment of export obligation, wherever export obligation of the final product was undertaken prior to imports. The appellant substituted the 26 shipping bills and tagged additional exports against the advance authorization and the Advance Authorization has been redeemed by the office of the Regional Licensing Authority, vide redemption letter dated 25th July 2019. 3. Since the exports made under the 26 shipping bills were not counted tow....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the duty drawback scheme; their request for conversion of shipping bills from Advance Authorization scheme to All Industry Rate of Duty Drawback scheme could not have been rejected on the pretext of want of documentary evidence at the time of export; under Rule 3 of the Drawback Rules, a drawback is allowed on the export of goods at such amount or at such rates, as may be determined by the Central Government, such rates are called All Industry Rate (AIR). While allowing All Industry Rate of drawback, no verification of the exported goods is required and hence no verification is undertaken also by the custom authorities. In the present case, no verification or examination of the goods exported vide the shipping bills was required because the claim of drawback was at All Industry Rate, which is the common and general rate fixed by the Central Government for all exporters of such goods in the country. Given that the export of goods is not in dispute, the calculation of drawback at All Industry Rate is only arithmetical exercise on the value already assessed by the customs officers, which could have been done on the basis of the documentary evidence, that is the export documents li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ls) Ltd. Vs. CC, Bangalore - 2021 (8) TMI 991-CESTAT BANGALORE v) Tamil Nadu Textile Corp. Ltd. Vs. CCE, Coimbatore - 2009 (246) ELT 586 (Tri.-Chennai) Further, Para 3(a) of the Circular 36/2010 dated 23 September 2010 inserting a time limit of 3(three) months for the purpose of Section 149 of the Customs Act,1962 has already been quashed by the Hon'ble Gujarat High Court in the Mahalaxmi case being ultra virus of Section 149 and article 14/19(1)(g) of Constitution of India. Therefore, rejection of request for conversion on the ground of the same being time barred is ex-facie contrary to law and settled legal position in this regard. 7. The appellant further submitted that; impugned order travelled beyond the order-in-original dated 27 June 2019 in so far as it seeks to deny the benefit of conversion for lack of documentary evidence, which was not at all the subject matter of dispute at any prior stage; the order passed by the adjudicating authority is the foundation for the appeal filed before the appellate authority, and therefore the order of the appellate Authority cannot travel beyond the allegations and charges, which have been disclosed in the order of the adj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....posited or exported as the case may be". The appellant contends that the Commissioner(appeals) has taken a ground, which was not canvassed by Revenue in the prior proceedings in the case and hence not legally tenable and cited the decision of the Hon'ble Apex Court in the case of Reckitt & Colman of India Ltd., Vs. Collector of Central Excise, wherein it is held that:- 3. "It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the Tribunal should have allowed the appeal. It was beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. It is upon this ground alone that the appeal must succeed". 10. I find that in this case the impugned 26 shipping bills are dated between 23.01.2018 to 03.04.2018 and the exported goods are factory stuffed and self-sealed, hence no examination was done by the Custom at the port. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sts for conversion of shipping bills from free to export promotion scheme and from one export promotion scheme to another on a case to case basis depending on the merits of the case. It has also come to notice of the Board that the Tribunals in a series of judgments have held that amendment to shipping bill after export of goods is governed by the proviso to section 149 of the Customs Act, 1962 and if the requirements of the said proviso are satisfied, conversion of shipping bill should be allowed. The conversion of the shipping bill from one scheme to another cannot be linked with denial of benefit of one scheme by DGFT/MoC&I or Customs due to some dispute as no such condition for amendment of shipping bill has been provided in section 149 of Customs Act, 1962. 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 (for example, from Advance Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB sch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... conversion is sought and the scheme from which conversion is sought. Whenever conversion of a shipping bill is allowed, the same should be informed to DGFT so that they may also ensure that the exporter does not take benefit of both the schemes. 6. This circular supersedes the Board circular No. 4/2004-Cus., dated 16-1-2004 and the earlier circulars issued in the past on this issue. This circular shall be applicable only to shipping bills filed on or after the date of issuance of this circular. Till such time as EDI system is modified to allow conversion of shipping bill in the EDI system, conversion may be allowed manually. 7. A suitable Public Notice for information of the Trade and Standing Order for guidance of the staff may be issued. Difficulties faced, if any in implementation of the directions may be brought to the notice of the Board. 13. I find that Circular No.36/2010 is not amended after the amendment to Section 149 inserting the words [in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed] by Act 23 of 2019, S.80. However, a Notification No. 11/2022-Customs (NT) 22.02.2022 under section 157 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Commissioner and Chief Commissioner, respectively. 16. As regards the documentary evidence, I find that in this case the appellant has exported the goods under the impugned 26 shipping bills against the Advanced Authorisation No. 0210207855 dated 13.09.2017 and filed for redemption of the Advanced Authorisation, that is when they received the communication from DRI. It is not possible for the appellant to have foreseen such a situation that these 26 shipping bills cannot be considered for redemption of the Advanced Authorisation. The appellant has substituted the impugned 26 Shipping Bills with the eligible Shipping bills and the Advance Authorisation was redeemed by DGFT. Thereafter the appellant sought conversion of the 26 Shipping bills filed and exports made under Advanced Authorisation to Duty Drawback shipping bills. The requirement of mentioning on the impugned 26 Shipping Bills that the goods are being exported under Duty Drawback scheme and the rate of Duty Drawback would not have been possible in these circumstances. Further, Circular No.36/2010 permits the conversion from one scheme to another scheme. Further the requirement and the examination rigors for various sch....