TaxTMI 
TaxTMI 
2022 (11) TMI 1588
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....2020 would cover questions raised in Customs Appeal No. 8/2020 as well. Customs Appeal No. 12/2020 3. The respondent, a Unit located at Cochin Special Economic Zone (CSEZ), exported 123 consignments of goods by filing free shipping bills between 29.10.2015 and 30.03.2016. The respondent claimed export incentive under Merchandise Export from India Scheme (MEIS). The respondent was given MEIS Scrips by the Regional Authority of DGFT. The Customs Officers stationed in the CSEZ noticed that the respondent, at the time of subject export, did not express the intent to claim MEIS Scrips. On account of not declaring the intent for MEIS Scrips, the claim was rejected. Thereafter, as per the letter dated 25.06.2017, the respondent applied to the Deputy Commissioner of Customs for incorporating endorsement of intention to claim MEIS Scrips on the shipping bills lodged by the respondent between 29.10.2015 and 30.03.2016. 3.1 By Annexure-2 order dated 25.10.2017, the request for amendment of expression of intent in the shipping bills already filed was rejected. The Deputy Commissioner of Customs noted that in terms of Section 149 of the Act, amendment to the shipping bill is ....
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....ded in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." and provides for the amendment of a document. A plain reading of Section 149 and Proviso, it is argued, does not stipulate limitation. However, the proviso stipulates the circumstances or conditions in which the discretion for amending a document already filed could be considered. Section 149, read in the company of proviso, is categorically clear that no amendment of any document shall be authorized after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have b....
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....nd perusal of the material on record, I find that the appellant is working as a SEZ unit and he has exported 123 consignments of goods by filing Shipping Bills and the Regional Authority has issued MEIS scrips after satisfying that the goods were exported and proceeds were repatriated. Further, I find that when the appellant approached the Customs authorities for the registration of MEIS scrip at that time, it was found that the appellant have not declared their intention to avail the benefit of MEIS by making declaration in the Shipping Bills. Thereafter, the appellant requested for the amendment of the Shipping Bills under Section 149 of the Customs Act which was declined by both the authorities on the ground that there is delay in applying the amendment and further as per Circular No. 36/2010, examination were not conducted whereas for Export Promotion Scheme, stringent examination norms are prescribed. Further, I find that as far as examination of the consignment is concerned during the relevant time, there was no provision for physical examination of the cargo exported from SEZ unit under MEIS Scheme and that requirement was incorporated only on 19.09.2018 vide Notificati....
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...., for valid reasons, reversed on a ground not available in the circumstances that have been set out for reversing the order of the primary authority. The preponderance of judicial view on the absence of limitation on an application under Section 149 of the Act is available. We agree with the views, but in our jurisdiction, we are satisfied that there is a clear omission to consider each one of the circumstances, which weighed with the primary authority for rejecting the claim of the respondent. The Supreme Court in Union Of India v. VKC Footsteps (India) (P) Ltd. [(2022) 2 SCC 603] has laid down how Proviso is interpreted and understood, which reads thus: "Construing the proviso. 91. Provisos in a statute have multi-faceted personalities. As interpretational principles governing statutes have evolved, certain basic ideas have been recognised, while heeding to the text and context. Justice G.P. Singh, in his seminal text, Principles of Statutory Interpretation formulates the governing principles of interpretation which have been adopted by courts while construing a statutory proviso. The first rule of interpretation is that: "The normal function of a provi....
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....particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. " 92.3. Where the substantive provision of a statute lacks clarity, a proviso may shed light on its true meaning: "If the enacting portion of a section is not clear, a proviso appended to it may give an indication as its true meaning. As stated by Lord Herschell : "Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and shew when there is doubt about its scope, when it may reasonably admit of doubt as to its having this scope or that, which is the proper view to take of it:" 92.4. An effort should be made while construing a statute to give meaning both to the main enactment and its proviso bearing in mind that sometimes a proviso is inserted as a matter of abundant caution: "The general rule in construing an enactment containing a proviso is to construe them together without making either of them redundant or otiose. Even if the enacting part is c....
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....imes a proviso is in the nature of a separate provision, with a life of its own. The Court held: (Hiralal Rattanlal case.. (Emphasis supplied) "22. ... Ordinarily a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called a proviso, it is really at separate provision and the so called proviso has substantially altered the main section. In CIT v. Bipinchandra Maganlal & Co. Ltd this Court held that by the fiction in Section 10(2)(vii) second proviso read with. Section 2(6- C) of the Indian Income Tax Act. 1922 what is really not income is, for the purpose of computation of assessable income, made taxable income." (Emphasis supplied) Besides the decision in CIT v. Bipinchandra Maganlal & Co. Ltd. the Court in Hiralal Rattantal adverted to the earlier decisions in State of Rajasthan v. Leela Jain and Bihta Coop. Development Cane Mktg. Union Ltd. v. Bank of Bihar." 7.1 Proviso to Section 149 of the Act restricts the discretion of the officer by spelling out....