2020 (5) TMI 588 - AT - Customs

Amendment in shipping bills - rejection of request made by the Appellant for making amendment in the shipping bills on the ground that the Appellant had failed to provide any documentary evidence, as was required under section 149 of the Customs Act - HELD THAT - The Commissioner (Appeals) completely failed to distinguish the requirements of paragraph 2 of the notification and paragraph 3 of the notification. The documents which the Commissioner (Appeals) sought from the Appellant are in relation to the requirements of paragraph 3 of the notification and in fact even the information sought in the format is a format contemplated in paragraph 3 of the notification. Paragraph 2 of the notification required a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the notification. The appellant had not indicated the said declaration and it is this declaration that was sought to be submitted in the shipping bills through the amendment sought by the Appellant. Neither the Adjudicating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. For applicability of section 149 of the Customs Act relating to amendment of documents, all that has to be seen is that documentary evidence should have been in existence at the time the goods were exported. There is no document which was not in existence at the time the goods were exported for the simple reason that all the Appellant was claiming by the amendment was incorporation of the declaration that the Appellant intended to avail the rebate under paragraph 2 of the notification. Under paragraph 2 of the notification all that has to be seen for calculation of the rebate is the schedule. The documents mentioned in the order of the Commissioner (Appeals) were not required to be examined. It is, therefore, clear from the nature of the amendment that was sought by the Appellant in the Bills of entry and also from the provisions of section 149 of the Customs Act and the notification dated 29 June, 2012 that the amendment sought by the appellant in the shipping bills of entry was liable to be allowed since only a declaration was sought by the Appellant that rebate should be granted by refund of service tax paid on the specified services under paragraph 2 of the notification - Appellant shall be permitted to carry out the amendments in the shipping bills. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Whether the appellant was entitled to amend the shipping bills under Section 149 of the Customs Act, 1962.
2. Whether the appellant provided sufficient documentary evidence to support the amendment request.
3. Whether the appellant complied with the conditions stipulated in the notification dated 29 June 2012 for claiming rebate of service tax.

Detailed Analysis:

1. Entitlement to Amend Shipping Bills under Section 149 of the Customs Act, 1962:

The appellant sought the quashing of the order dated 6 June 2019, passed by the Commissioner of Customs (Appeals), which upheld the Assistant Commissioner's order rejecting the appellant's application under Section 149 of the Customs Act, 1962. The appellant aimed to amend 31 shipping bills filed between 20 March 2013 and 28 November 2014 to claim a rebate of service tax paid on specified services. The Assistant Commissioner rejected the request because the appellant failed to provide documentary evidence that existed at the time of export, as required under Section 149. The Tribunal noted that Section 149 allows amendments based on documentary evidence existing at the time of export, and the appellant claimed that such evidence was submitted with the shipping bills.

2. Sufficiency of Documentary Evidence:

The Assistant Commissioner and the Commissioner (Appeals) both rejected the appellant's request due to the lack of documentary evidence supporting the amendment. The Assistant Commissioner emphasized that no evidence existed in the submitted documents to support the appellant's claim for service tax rebate. Similarly, the Commissioner (Appeals) noted that the appellant did not provide evidence of service tax paid, receipt, and use of services. However, the Tribunal found that the appellant's claim was based on the rates specified in the notification's Schedule, not on documentary evidence required under paragraph 3 of the notification. The Tribunal highlighted that the appellant sought to amend the shipping bills to include a declaration for rebate under paragraph 2 of the notification, which did not necessitate the documentary evidence required under paragraph 3.

3. Compliance with Notification Dated 29 June 2012:

The notification dated 29 June 2012 provided two methods for claiming a rebate of service tax: based on rates specified in the Schedule (paragraph 2) or based on documents (paragraph 3). The appellant sought a rebate under paragraph 2, which required a declaration in the shipping bills. The Tribunal noted that the appellant's failure to make this declaration initially led to the amendment request. The Tribunal found that the Commissioner (Appeals) failed to distinguish between the requirements of paragraphs 2 and 3 of the notification. The Tribunal emphasized that the appellant's amendment request was valid under Section 149, as it was based on documentary evidence existing at the time of export, and the amendment sought was merely to include the necessary declaration for claiming the rebate.

Conclusion:

The Tribunal concluded that the Commissioner (Appeals) erred in rejecting the amendment request based on the requirements of paragraph 3 of the notification, which were not applicable to the appellant's claim under paragraph 2. The Tribunal allowed the appeal, setting aside the impugned order dated 6 June 2019, and permitted the appellant to amend the shipping bills to include the declaration for claiming the rebate of service tax paid on specified services under paragraph 2 of the notification.