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2016 (3) TMI 889 - AT - CustomsSeeking conversion of free shipping bills to Drawback shipping bills as per CBEC Circular No. 04/2004-CUs dt 16/01/2004 as per the provision of Sec 149 of the Customs Act 1962 - Rejected Appellant contended that after amendment under Notification No. 39/2003-Cus dt 19/6/2003 appellant became eligible for DBK with respect to exports of LPG & petroleum products exported to Nepal Oil Corporation Ltd. when exports are made through specified LCS and payments are received in Indian Rupees. Held that - by relying on the ratio of Man Industries (India) Ltd Vs. CC (EP) Mumbai 2006 (3) TMI 513 - CESTAT, MUMBAI in the case of Metallic Bellows (I) Pvt Ltd Vs CC (Exports) Nhava shera 2008 (3) TMI 198 - CESTAT MUMBAI , the case to be remanded back to the lower authorities. Therefore, a power given by Sec 149 of the Customs Act 1962 to the officers under a statute can not be curtailed by a Circular issued by CBEC and to be remanded back to allow conversion of free shipping bills to Drawback shipping bills under Sec 149 ibid, if otherwise permissible, independent of CBEC Circular dt 16/1/2004. Decided in favour of appellant by remand
Issues:
- Conversion of free shipping bills to Drawback (DBK) shipping bills as per CBEC Circular No. 04/2004-Cus dt 16/01/2004. - Eligibility of appellant for DBK on exports to Nepal under Notification No. 208/77-CUS dt 01/10/1977 and subsequent amendments. - Power of amendment of documents under Sec 149 of the Customs Act 1962. - Interpretation of CBEC Circular No. 04/2004-Cus and its binding effect on the Commissioner. - Comparison of statutory rights under Sec 149 of the Customs Act with the restrictions imposed by CBEC Circular. Detailed Analysis: Issue 1: Conversion of shipping bills The appellant sought conversion of free shipping bills to DBK shipping bills under Sec 149 of the Customs Act 1962. The Commissioner rejected the request citing CBEC Circular No. 04/2004-Cus. The appellant argued that the power to amend documents, including shipping bills, is granted under Sec 149 and cannot be limited by a circular. The Tribunal referred to various case laws supporting the appellant's argument, emphasizing the statutory right to seek amendment under Sec 149. Issue 2: Eligibility for DBK The appellant claimed eligibility for DBK on exports to Nepal under Notification No. 208/77-CUS and subsequent amendments. The Tribunal noted that the appellant became eligible for DBK after an amendment in Notification No. 39/2003-Cus, allowing DBK for exports to Nepal Oil Corporation Ltd. The appellant's unawareness of the amendment led to the initial use of free shipping bills instead of DBK shipping bills. Issue 3: Interpretation of CBEC Circular The Commissioner relied on CBEC Circular No. 04/2004-Cus to reject the appellant's request for conversion. However, the Tribunal held that the Commissioner's decision was not in line with the statutory rights provided under Sec 149 of the Customs Act. The Tribunal emphasized that the circular should not curtail the statutory right to seek amendments. Issue 4: Binding effect of CBEC Circular The Tribunal highlighted that the Commissioner's adherence to the circular, which limited the conversion of shipping bills, was not justified. The Tribunal referenced case laws where the courts upheld the statutory rights of the appellants under Sec 149, emphasizing that circulars should not override statutory provisions. Conclusion The Tribunal set aside the Commissioner's order and remanded the matter to allow the conversion of free shipping bills to DBK shipping bills under Sec 149 of the Customs Act 1962. The decision emphasized the importance of statutory rights and the limited binding effect of circulars, ensuring the appellant's entitlement to seek amendments independently of CBEC Circular No. 04/2004-Cus. The appeal was allowed, granting the appellant the opportunity for a personal hearing in the remand process.
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