2022 (4) TMI 479 - AT - Customs

Advance Authorisation Scheme - Request of the appellant for endorsing advance authorisation numbers on the free shipping bills and for issue of NOC for considering the free shipping bills as shipping bills - rejection of request on the ground that firstly the appellant have exported the goods from Karwar Port which is not authorised for which a prior permission ought to have been taken - rejection also on the ground that on the shipping bills advance authorisation number was not declared - HELD THAT - The appellant have been writing various letters to the Department for permission of export from Karwar Port against the subject advance authorisation - From the letters it is clear that the appellant have been requesting the Department for permission to export from Karwar Port under advance authorisation. The Department has not given any response to various correspondences made by the appellant. Therefore in our considered view since no response from the Department the permission deemed to have been received by the appellant. Accordingly there is no objection exist for export of goods from Karwar Port. Endorsement regarding advance authorisation - Section 149 of Customs Act - HELD THAT - From the plain reading of Section 149 it is clear that even though it is discretionary but on certain conditions the document can be amended even after the goods have been exported on the basis of documentary evidence which was existence at the time of goods were cleared for export - In the present case the appellant had in possession of Advance Authorisation No.0710065592 dt. 26/06/2009 and Advance Authorisation N.0710065655 dt. 26/11/2010 and the exports of goods have been taken place from 30/06/2009 to 18/11/2010 and 27/12/2010 to 19/10/2012 respectively. Accordingly at the time of export of goods the advance authorisations were very much in existence. More over the appellant have been making repeated requests to the Department for export of goods from Karwar Port under the aforesaid advance authorisations. Therefore there were all the documents existing at the time of export of goods. On this basis the appellants are clearly entitled for amendment in the shipping bills by conversion of free shipping bills to shipping bills under advance authorisation. Thus the appellants are entitled for conversion of free shipping bills to shipping bills under advance authorisation and for consequential effect such as issuance of NOC for producing before DGFT - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Rejection of request for endorsing advance authorization numbers on free shipping bills and issue of NOC for considering free shipping bills as shipping bills under Advance Authorization Scheme.
2. Appellant's repeated requests for permission to export from Karwar Port under Advance Authorisation.
3. Eligibility of the appellant for endorsement of advance authorisation under Section 149 of the Customs Act.

Analysis:
1. The appeals challenged the rejection of the appellant's request for endorsing advance authorization numbers on free shipping bills and issuing NOC for treating them as shipping bills under Advance Authorization Scheme. The Commissioner of Customs rejected the request citing unauthorized export from Karwar Port and non-declaration of advance authorization numbers on shipping bills. The appellant contended compliance with Section 149 of the Customs Act, arguing for conversion of free shipping bills to advance authorization shipping bills. The appellant's submissions highlighted inter-departmental correspondence endorsing their export track record from Karwar Port and the repeated requests made to the Customs Department. The appellant relied on various judgments permitting such conversions under lenient views of the Customs Act.

2. The appellant persistently sought permission to export from Karwar Port under Advance Authorisation, as evidenced by multiple letters to Customs officials. Despite the lack of responses from the Department, the Tribunal deemed the permission received due to the continuous correspondence. Consequently, the Tribunal found no objection to the export of goods from Karwar Port. Section 149 of the Customs Act was invoked to support the appellant's eligibility for amending documents post-export based on existing documentary evidence. The Tribunal noted the possession of valid Advance Authorisations during the export period, justifying the amendment of shipping bills to reflect the advance authorizations.

3. The Tribunal analyzed Section 149 of the Customs Act, emphasizing the discretionary power of the proper officer to authorize document amendments post-export under specific conditions. In this case, the appellant's possession of valid advance authorizations during export, coupled with repeated requests to the Department, justified the conversion of free shipping bills to advance authorization shipping bills. Relying on previous judgments, the Tribunal concluded in favor of the appellant, allowing the conversion and setting aside the impugned orders. The appeals were allowed with consequential relief as per the law.

This detailed analysis of the judgment addresses the issues raised in the appeal comprehensively, highlighting the legal arguments, statutory provisions, and precedents considered by the Tribunal in reaching its decision.