2010 (12) TMI 598 - AT - Customs

Free shipping bills - CBEC Circular No. 4/2004-Cus., dated 16-1-2004 - It does not take into account the right of an exporter under Section 149 of the Act to apply for amendment of shipping bill on the strength of pre-existing documents - The proviso stipulates that no such amendment be permitted in a shipping bill after exportation of the goods except on the basis of documentary evidence which was in existence at the time of exportation - The question to be considered in the instant case is whether the export documents in any way supported the exporter s claim for amendment of the shipping bills - This conversion can be permitted only on the strength of an advance licence issued by the licensing authority on or before the date of filing of the relevant shipping bill - If they intended to claim the export incentive, they would have filed the shipping bills after obtaining the advance licence. In this circumstance, I am not inclined to find fault with the finding of afterthought recorded by the Commissioner - In the result, the Commissioner s order is sustained and this appeal is dismissed

Summary

Issues: Conversion of 'free shipping bills' to 'DEEC shipping bills' under Section 149 of the Customs Act based on advance licenses issued after exportation.

Analysis:

Issue 1: Conversion of Shipping Bills
The case involved the appellant's request for the conversion of 'free shipping bills' to 'DEEC shipping bills' under Section 149 of the Customs Act. The Commissioner declined the conversion, citing the absence of advance licenses at the time of exportation. The appellant argued that the export documents, particularly the ARE-1 certificates, reflected the intention to export under the DEEC scheme. The appellant also relied on precedents where similar conversions were allowed based on examination of export documents.

Issue 2: Proviso to Section 149 of the Customs Act
The Commissioner and the JDR contended that the appellant did not meet the requirements of the proviso to Section 149, which mandated that amendments to shipping bills after exportation could only be based on existing documentary evidence. The absence of advance licenses at the time of exportation was highlighted as a crucial factor in denying the conversion of shipping bills.

Analysis of Judgment:
The Tribunal analyzed the provisions of Section 149 of the Customs Act, which granted the customs officer discretion to permit amendments to shipping bills post-exportation. The proviso to this section emphasized the necessity of documentary evidence existing at the time of exportation for such amendments. The Tribunal noted that the ARE-1 certificates submitted by the appellant did not support their claim for amendment, as the certificates did not indicate customs officer examination due to the absence of export incentives claimed. The Tribunal emphasized that advance licenses, issued post-exportation, could not be the basis for amending shipping bills under Section 149.

The Tribunal also scrutinized the appellant's argument regarding pending applications for advance licenses at the time of filing shipping bills. It was highlighted that mere applications were insufficient for conversion, and the appellant should have obtained advance licenses before exportation. The Tribunal dismissed the appellant's claim, noting the proximity of filing shipping bills to receiving advance licenses, indicating lack of genuine intent to claim DEEC benefits. Precedents cited by the appellant were distinguished based on the factual distinctions, emphasizing the need for existing documentary evidence at the time of exportation for amendments under Section 149.

In conclusion, the Tribunal upheld the Commissioner's order, dismissing the appeal and emphasizing the importance of compliance with the statutory provisions and documentary evidence requirements for post-exportation amendments to shipping bills.

This detailed analysis of the judgment comprehensively covers the issues involved and the Tribunal's reasoning behind upholding the Commissioner's decision.