2022 (7) TMI 725 - HC - Customs

Seeking amendment in the shipping bills - conversion from Drawback Scheme to Advance Authorization Scheme - seeking adjustment of the expenses made under the shipping bills towards export obligation - grant of Export Obligation Discharge Certificate (EODC) under the said scheme - sixth shipping bill rejected on the ground that documentary evidence has not been produced - HELD THAT - Mr. Namboodiri states that all documentary evidence had been produced but if Respondent No.3 wants these documents again petitioner would provide the same during the personal hearing. As regards five shipping bills that came to be rejected on the ground of being time barred, Respondent No.3 has relied upon Circular No.36/2010-Customs dated 23rd September, 2010 - HELD THAT - A Circular could not have been issued by the Central Board of Excise Custom (CBEC) providing for three months time period to make a request for amending the shipping bills. This is because in Section 149 of the Act no time period has been prescribed and if in any specific statutory provision of law, no time period has been prescribed, then such circular could not have been issued by the CBEC. As rightly submitted by Mr. Namboodiri where the legislature wanted to prescribe any time limit for taking action like Section 128, 129 and 130 etc., of the Act, such time limit has been specifically laid down in the relevant provisions of the Act. When no time limit for making a request for amendment of any document is specified under Section 149 of the Act, it is clear that the legislature has not thought fit to restrict the scope of this provision for the amendment of the documents in terms of the time limit for making a formal request for such amendment. Moreover, Section 149 of the Act or any other provision of the Act does not confer any power or jurisdiction over the Board for laying down any time limit for operating this provision in respect of the amendment of documents. Therefore, the time limit of three months laid down vide paragraph no.3(a) of the circular is especially illegal and without jurisdiction. Respondent No.3 is directed to consider the amendment application without raising an issue of time limit and dispose the amendment application on merits and in accordance with law - petition disposed off.

Summary

Issues:
1. Amendment of shipping bills for inserting Advance Authorization details due to clerical error.
2. Conversion of shipping bills from Drawback Scheme to Advance Authorization Scheme.
3. Rejection of the amendment application by Respondent No.3 on the grounds of being time-barred.
4. Legality of Circular No.36/2010-Customs prescribing a three-month time period for amendment requests.
5. Quashing of the impugned communication and direction to consider the amendment application without time limit issue.

Analysis:
1. The petitioner sought relief to amend six shipping bills to insert Advance Authorization details due to a clerical error, which led to the details not being reflected in the shipping bills. The petitioner also requested the conversion of these bills from the Drawback Scheme to the Advance Authorization Scheme to claim adjustment of expenses towards export obligations. The application for amendment was made under Section 149 of the Customs Act, 1962.

2. Respondent No.3 rejected the amendment application citing that five of the six shipping bills were time-barred and that documentary evidence for the sixth bill was not produced. The Circular No.36/2010-Customs was relied upon by Respondent No.3, which prescribed a three-month time period for amendment requests. However, the High Court held that such a time limit could not be imposed as Section 149 of the Act did not specify any time period for amendments.

3. The Court emphasized that when the legislature did not prescribe a time limit for making a request for document amendments under Section 149 of the Act, the provision should not be restricted by imposing a time limit through circulars. Referring to a judgment of the Gujarat High Court, the High Court deemed the time limit prescribed in the circular as illegal and without jurisdiction.

4. Consequently, the High Court quashed the impugned communication dated 30th December 2021 and directed Respondent No.3 to consider the amendment application without raising the issue of time limit. A personal hearing was mandated to be provided to the petitioner before any order was passed, ensuring a fair opportunity to address any judicial pronouncements relied upon by Respondent No.3.

5. The High Court disposed of the petition with no order as to costs, clarifying that no view was expressed on the merits of the application. The judgment emphasized the importance of statutory provisions over circulars in determining the legality of time limits for amendment requests under the Customs Act, 1962.