TaxTMI 
TaxTMI 
2026 (3) TMI 1544
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.... 63 of the Customs Tariff Act, 1975 and for export of such goods they have filed 147 Shipping Bills (S/Bs) before the jurisdictional customs authorities. 2.3 In terms of the export promotion measures introduced by the Central Government, Ministry of Textiles, export of apparels and made-up sector of textiles, were provided with rebate of State taxes and Central taxes in order to avoid the taxes being built in with the cost of export of goods under the scheme of Rebate of State Levies (RoSL). However, as certain taxes continued to be present in the cost of exports, the Ministry of Textiles in the Central Government had discontinued RoSL scheme and a new scheme viz., Rebate of State and Central Taxes and Levies (RoSCTL) was introduced vide Notification No. 14/26/2016-IT (Vol.II) dated 07.03.2019. Under such scheme, the Central Government in accordance with the recognised international economic principle of Zero rating of export products, provided for rebate of State and Central Taxes and Levies in addition to the ''Duty Drawback Scheme' on export of garments and madeups i.e., all goods falling under Chapter 61 or 62, all goods falling under Chapter 63 of the Schedule of All Indust....
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....d 31.03.2022 was rejected by the jurisdictional capital Commissioner of Customs, NS-II, JNCH, Nhava Sheva, Mumbai Customs Zone-II on the ground of such request being time barred in terms of CBIC Circular No.36/2010 dated 23.09.2010, and the same was informed by Commissionerate office letter dated 09.06.2022, signed by the Assistant Commissioner of Customs, CEAC, JNCH, Nhava Sheva. 2.5 Being aggrieved by such decision of rejection, the appellants, initially, had preferred an appeal against the decision communicated vide letter dated 09.06.2022, before the Commissioner of Customs (Appeals), Mumbai-II, and it was disposed of by him vide the order dated 18.04.2023. In the said order, the appeal was rejected on the ground that rejection order was passed/decided by the Commissioner of Customs and as such, appeal against such order cannot be filed before the Commissioner of Customs (Appeals) in view of the provisions of Section 128 ibid; and thus, the appeal is not maintainable, being beyond the jurisdiction of the First Appellate Authority. In further appeal filed by the appellants against the decision of the learned Commissioner of Customs (Appeals) before this Bench, in Customs Appe....
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....scheme to another involves change from the scheme involving less rigorous examination to more rigorous examination, which cannot be acceded to in terms of the CBIC Circular No.36/2010-Customs dated 23.09.2010; (ii) the appellants had not opted for RoSCTL scheme in the S/Bs and there is no document to show that they had intent or any other evidence to support their claim; (iii) the appellants could have availed the benefits of any of the schemes such as MEIS scheme and availment of export incentives/ benefits at both the ends have not been examined in order to allow such request for conversion. In this regard, he submitted that against each of the aforesaid ground they have a strong case to prove the merits of their case and therefore submitted the following facts to support their case. 3.2 Learned Advocate stated that the appellants have exported goods falling under Chapter 63, which are duly covered under 'RoSCTL scheme' notified by the government, and thus the substantial benefits extended by a specific export promotion scheme cannot be denied on the grounds of procedural non-compliance in mentioning incorrect scheme code number. He further stated that fro....
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.... which the appellants had requested for allowing amendment for conversion from one scheme to another, learned Commissioner in the impugned order had explained why he could not consider the three S/Bs viz., S/B No.8370497 dated 20.11.2019 being not pertaining to JNCH, Nhava Sheva; S/B Nos.7435333 dated 07.10.2019 and 7864248 dated 25.10.2019 cover goods of Chapter 57, and thus he had considered and rejected the claim for rest of 144 S/Bs. Therefore, he claimed that the impugned order is sustainable. 5. Heard both sides and perused the records of the case. We have also examined the submissions advanced by learned Advocate appearing for the appellants and the learned Authorized Representative of the Department. Further, we have also perused the additional written submissions in the form of paper books submitted by both sides along with citation of case laws in support of their case. 6. The issue involved in this appeal for consideration before the Tribunal is, to examine whether, the request made by the exporter for amendment in the Shipping Bills for conversion of export promotion scheme i.e., from the 'Drawback' scheme having Scheme code No. "19" to other scheme of 'Drawback &....
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....ment had issued the Shipping Bill (Post Export Conversion in Relation to Instrument Based Scheme) Regulations, 2022 vide Notification No.11/2022-Customs dated 22.02.2022 prescribing the time limits within which the request for amendment could be considered and the relevant conditions and restrictions which are required to be fulfilled for permitting such conversion from one instrument based scheme to another. On perusal of the facts of the case and that the subject S/Bs, for which conversion from one scheme to another had been sought for the appellants, in respect of which orders for clearance of goods under Section 51(1) ibid/LEOs were granted between 12.03.2019 to 11.05.2020 i.e., prior to bringing into force of the above regulations, it clearly transpires that the aforesaid conditions/restrictions, time limits would not be applicable in the present case. The learned Commissioner of Customs had also correctly recorded the above statutory position of the non-application of the above regulations in paragraph 14 of the impugned order. 7. However, he had applied various criteria with respect to examination norms, documentary evidence in existence at the time of export, use of inpu....
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....respect of exports to sensitive places viz. Dubai, Sharjah, Singapore, Hong Kong and Colombo was also provided therein in place of 10%/surprise check examination norms, which is generally applicable in other cases. The Government had introduced Risk Management System (RMS) as a measure of trade facilitation and for selective screening of only high risk cargo for customs examination in respect of imports vide Circular No.43/2005-Customs dated 24.11.2005, in major Customs locations where the ICES is operational. On such introduction of RMS, the then existing practice of routine assessment, concurrent audit and examination of almost all Bills of Entry were discontinued and the focus was kept on quality assessment, examination and Post Clearance Audit of Bills of Entry selected by the Risk Management System. Similarly, RMS in export was introduced with effect from 15.07.2013 vide CBIC's Circular No. 23/2013-Customs dated 24.06.2013. RMS for exports was developed with the following components viz., (i) ensuring appropriate control measures for proper and speedy disbursement of drawback and other export incentives (ii) effective utilization of human resources, to match ....
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....mination instructions could have given in respect of impugned export goods for the S/Bs filed from 08.03.2019 to 07.05.2020 only by the proper officer of customs; further, as the RMS in export was introduced with effect from 15.07.2013, there is no case for prescribing examination order/instructions by RMS, by varying it depending upon the nature and extent of export promotion scheme during such period when S/Bs were filed by the appellants i.e., from 08.03.2019 to 07.05.2020. Further, there is no evidence shown in the form of Circular/instructions etc., in the impugned order to state that the examination norms for such request for conversion of scheme is from less rigorous to more rigorous. Therefore, the finding given by the learned Commissioner at paragraph 17(A) to this extent is contrary to the factual position and thus the same is not legally sustainable. 8.3 Further, CBEC had also issued instructions vide Circular No.06/2003Customs dated 28.01.2003 as amended by Circular No.40/2003-Customs dated 12.05.2003 for permitting (a) conversion of free shipping bills into Advance License/ DEPB/DFRC/Drawback shipping bills; and (b) conversion of shipping bills fro....
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....1, 43, 44, 45, 46, 47, 48, 49, 61, 62, 63, 64, 65, 71, 73, 74, 75, 76, 79, 80, 81" cover drawback scheme in combination with various other EP schemes. Further, the data to be entered in the ICES in filing a S/B, for preferring a particular export promotion scheme/drawback is indicated only by the scheme code under column "18" of "Part-III item details" for each of the item exported therein and in 'Part-IV Export Scheme details' for providing details of drawback serial numbers, license details. Further, as provided in Circular No. 8/2017Customs dated 20.03.2017 under the scheme of Rebate of State Levies (RoSL), the appellants were eligible to claim the benefits for rebate of state taxes along with benefit of drawback, either as a standalone drawback benefit or in combination with other schemes, as provided therein. The said RoSL scheme was discontinued and the new scheme viz., Rebate of State and Central Taxes and Levies (RoSCTL) was notified by the government from 08.03.2019. Consequently, CBIC vide Circular No. 10/2019-Customs dated 12.03.2019 had advised the Directorate General of Systems and Data Management to make necessary changes in the ICES/ Customs EDI System. In the said c....
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....of Customs for rejecting the request for conversion on the ground that the appellants may avail the benefits of MEIS scheme, and such aspect have not been examined is contrary to the various circulars in force, RoSCTL scheme and improper in view of the detailed procedure prescribed by the DGFT in P.N. dated 29.01.2020. 9.1 In this regard, it is also relevant to take note of the decision of the Tribunal in Man Industries (India) Limited Vs. Commissioner of Customs, (EP) - 2006 (202) E.L.T. 433 wherein it was held that "the statutory right, as also the statutory obligation of the proper officer to amend the document after its presentation in the custom house cannot be curtailed or set to not by circulars of the Board." The said decision of the Tribunal was upheld by the Hon'ble Bombay High Court as reported in 2007 (216) E.L.T. 15 and the appeal filed by the department against such judgement before the Hon'ble Supreme Court in Civil Appeal No. 8513 of 2011 was also dismissed 2015 (326) E.L.T. A34 (SC), by holding as under: "After hearing learned counsel for the parties, we are convinced that what was sought was the amendment of documents only and would squarely be covered....