2011 (2) TMI 424 - AT - Customs

Conversion of drawback shipping bill to DEEC shipping bill - Board s Circular No. 4/2004-Cus., dated 16-1-2004 - No speaking order - The Circular No. 4/2004-Cus. which permitted conversion of shipping bill from one export promotion scheme to another, subject to specific conditions, superseded all previous circulars on the subject. In that process, obviously, the parent circular for the public notice also came to be superseded - Appeal is allowed by way of remand to AO

Summary

Issues involved:
Conversion of shipping bill from drawback scheme to DEEC scheme; Validity of Circular No. 4/2004; Maintainability of the appeal against Commissioner's decision; Supersession of Public Notice No. 17/1990 by Circular No. 4/2004.

Conversion of shipping bill from drawback scheme to DEEC scheme:
The appeal concerned the conversion of a shipping bill from a drawback scheme to a DEEC scheme. The appellant had initially filed a shipping bill under the drawback scheme instead of the DEEC scheme due to a communication gap with their CHA. The Assistant Commissioner rejected the conversion request citing Circular No. 4/2004, which allowed conversion only under specific conditions. The appellant argued for reconsideration based on Public Notice No. 17/1990, claiming entitlement to conversion due to lack of communication. The Tribunal found the case fit for remand, emphasizing the need for the Commissioner to review the application considering the circumstances and issue a speaking order within three months.

Validity of Circular No. 4/2004:
Circular No. 4/2004 was crucial in determining the conversion of the shipping bill. The appellant contended that the circular did not have retrospective effect and should not apply to their request for conversion. The Tribunal acknowledged the circular's significance, noting that it superseded all previous circulars on the subject, including Public Notice No. 17/1990. The issue of the circular's retrospective effect was left for the Commissioner to decide upon reconsideration of the application.

Maintainability of the appeal against Commissioner's decision:
The Respondent argued that the appeal was not maintainable as the initial rejection letter from the Assistant Commissioner was not appealed against. However, the Tribunal deemed the appeal maintainable since the Commissioner's decision, issued after a personal hearing, qualified as an appealable order. The Tribunal emphasized that the Commissioner's decision was subject to review due to being passed in exercise of quasi-judicial power.

Supersession of Public Notice No. 17/1990 by Circular No. 4/2004:
The issue of supersession arose concerning Public Notice No. 17/1990 by Circular No. 4/2004. The appellant claimed reliance on the public notice for conversion, while the Respondent argued that the circular superseded all previous circulars, including the public notice. The Tribunal directed the Commissioner to consider this aspect, weigh the arguments presented, and make a fresh decision on the application for conversion, ensuring a fair opportunity for the appellant to be heard.

In conclusion, the Tribunal set aside the impugned proceedings, allowing the appeal by way of remand for the Commissioner to reevaluate the application for conversion of the shipping bill in light of the arguments presented and issue a speaking order within three months.