2009 (10) TMI 762 - AT - Customs

Conversion of shipping bills - free shipping bills to drawback shipping bills - whether, the Commissioner has the power to permit conversion of the free shipping bills to drawback shipping bills? - Held that - In the case of drawback shipping bills, in normal course, there should be a declaration by the exporter that a claim for drawback is being made. In certain situations, there should also be a declaration that no separate claim for rebate of duty or service tax has been or will be made to the Central Excise authorities. The proviso to Rule 12(1) of the Drawback Rules empowers the Commissioner to exempt the exporter from making such declarations. It would follow that the proviso to Rule 12(1)(a) of the Drawback Rules is also an enabling provision for the Commissioner of Customs to permit conversion of free shipping bills to drawback shipping bills. In the result, the Commissioner can exercise this power under Section 149 of the Customs Act read with the proviso to Rule 12(1)(a) of the Drawback Rules - appeal allowed by way of remand.

Summary

Issues:
- Conversion of 'free shipping bills' to 'drawback shipping bills'
- Commissioner's decision on merits and negation of natural justice

Analysis:
1. The appeal concerns the Commissioner's refusal to allow the conversion of 'free shipping bills' to 'drawback shipping bills' due to the absence of a provision for such conversion. The appellant sought this conversion under Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. The Commissioner considered two key issues: the admissibility of drawback for molasses export and the relaxation of exporter conditions under Rule 12(1). The Commissioner denied the conversion citing the absence of a provision and a time lapse of over two years.

2. The appellant challenged the decision on merits and grounds of natural justice, claiming lack of opportunity to be heard. They relied on CBEC's clarification in Circular No. 4/2004-Cus. and precedent cases like Kiran Pondy Chems Ltd. v. CC, Chennai. The Tribunal noted that the Commissioner's decision lacked consideration of Section 149 of the Customs Act, which allows document amendments under certain conditions, including the existence of documentary evidence at the time of export.

3. The Tribunal, following the Kiran Pondy case, held that the Commissioner has the authority to permit conversion under Section 149 of the Customs Act. It emphasized the oversight in the Commissioner's decision and the need for a quasi-judicial approach. The judgment highlighted the consistent application of this view by the Tribunal and the High Court.

4. Rule 12(1)(a) of the Drawback Rules mandates exporters to state particulars and make declarations on shipping bills. The proviso empowers the Commissioner to exempt exporters from certain requirements. The Tribunal concluded that the proviso enables the conversion of free shipping bills to drawback shipping bills. It clarified that the absence of a time limit in Section 149 renders the Commissioner's decision unsustainable.

5. Consequently, the Tribunal set aside the Commissioner's decision and remanded the case for a fresh decision. The Commissioner was directed to consider the conversion issue, provide a speaking order, and ensure a fair hearing for the appellant. The judgment did not address the substantive aspect of the drawback claim, focusing solely on the conversion matter.