2022 (12) TMI 668 - AT - Customs

Amendment to shipping bill - Period of limitation - non-availability of goods for examination - export of cold rolled non grain oriented silicon electrical steel sheet/coils in fully/semi-processed state - first proviso in section 149 of Customs Act, 1962 - appellant intends to seek the benefit afforded by zero duty export promotion capital goods cum duty free import authorization (EPCG cum DFIA) scheme instead of zero duty export promotion capital goods (EPCG) scheme in the Foreign Trade Policy (FTP) HELD THAT - Though the issue has been portrayed as befitting ascertainment within the rigour of first proviso in section 149 of Customs Act, 1962 as shipping bills were sought to be amended, the distinction between the generality of the principal enactment and the particularity of the proviso has been enunciated in re Haldiram Foods International Pvt Ltd. 2020 (12) TMI 1229 - CESTAT MUMBAI Rejection of request for amendment in circumstances that are outrightly not in conformity with the literal phraseology of section 149 of Customs Act, 1962 may not be overturned for lack jurisdiction but can upon passing the test of conformity with either the principal enactment or the more rigourous in the proviso, as the case may be. From the nominal nature of the amendment sought without impacting any statutorily prescribed detail in the entry mandated by section 50 of Customs Act, 1962, the application does not fall within the sphere of the proviso that has been resorted to in the impugned order. The impugned order has been passed without issue of show cause notice. And yet, the proper officer did not hesitate to decide on the lack of wherewithal for ascertainment of value addition norms in the exports, of the raw materials and other inputs in the manufacture of the goods, of conformity of the utilized inputs with permissibility in the Standard Input Output Norms (SION) and, indeed, the classification of the exported goods within the said standard input output norms (SION) in the Foreign Trade Policy. The determination of ineligibility, for want of the goods physically, to operate under the duty free import authorization (DFIA) scheme in the Foreign Trade Policy (FTP) as ground to refuse the amendment traverses beyond the scope and intent of section 149 of Customs Act, 1962. Non-availability of goods for examination - there is no controverting of the submission of Learned Counsel for appellant that post-exportation processing of application under duty free import authorization (DFIA) scheme in the Foreign Trade Policy (FTP) by the Directorate General of Foreign Trade (DGFT) is not contingent upon any specific evaluation of the exported goods. Neither is the pivotal role of that agency contested in the submission of Learned Authorized Representative. To decide on eligibility of import at this stage is patently in excess of jurisdiction and peremptory. This premature filtration at the threshold not envisaged in section 149 of Customs Act, 1962 and arrogating of policing over statutory authority vested in another agency of the State is unacceptable. In the light of our findings supra, we find no reason to sustain the order impugned before us. Consequently, we set aside the rejection to allow the appeal and direct the respondent-Commissioner to effect the amendments in the shipping bills as sought for by the appellant.

Summary

Issues Involved:
1. Rejection of request for amendment of shipping bills under Section 149 of the Customs Act, 1962.
2. Applicability of time limitation for amendment requests.
3. Requirement of physical examination of goods for eligibility under the EPCG-cum-DFIA scheme.
4. Jurisdiction and authority of customs officials in deciding eligibility for amendments.

Detailed Analysis:

1. Rejection of Request for Amendment of Shipping Bills:
The appellant, M/s Posco Maharashtra Steel Pvt Ltd, sought to amend 230 shipping bills filed between July 2017 and May 2019 under Section 149 of the Customs Act, 1962. The request was rejected by the Deputy Commissioner of Customs (Export Assessment), New Customs House Mumbai, citing the bar of limitation and the non-availability of goods for physical examination. The appellant contended that there is no time limitation under Section 149 and referenced previous Tribunal decisions and a High Court ruling that supported their stance.

2. Applicability of Time Limitation for Amendment Requests:
The Tribunal noted that Section 149 of the Customs Act, 1962, does not prescribe any time limitation for amendments. The Tribunal referenced previous decisions, including Parle Products P Ltd v. Commissioner of Customs and Lykis Ltd v. Commissioner of Customs, which held that the absence of any limitation in Section 149 precludes consideration of a timeframe in disposing of amendment applications. The Tribunal also cited the Hon'ble High Court of Gujarat's decision in Mahalaxmi Rubtech Ltd v. Union of India, which declared paragraph 3(a) in circular no. 36/2010-Cus dated 23rd September 2010 to be ultra vires Section 149 of the Customs Act, 1962.

3. Requirement of Physical Examination of Goods:
The Tribunal examined the requirement for physical examination of goods as a pre-requisite for eligibility under the EPCG-cum-DFIA scheme. The Tribunal found that the impugned order's reliance on the need for physical examination was misplaced, as the amendments sought did not involve altering the description of the exports. The Tribunal emphasized that amendments under Section 149 do not necessarily require verification of documentary evidence if the goods have already been exported and cleared without objection.

4. Jurisdiction and Authority of Customs Officials:
The Tribunal addressed the jurisdictional overreach by customs officials in deciding eligibility for amendments under the EPCG-cum-DFIA scheme. The Tribunal highlighted that the authority to scrutinize eligibility and issue instruments under the Foreign Trade Policy (FTP) lies with the Directorate General of Foreign Trade (DGFT), not the customs authorities. The Tribunal found that the customs officials' decision to reject the amendment request based on eligibility considerations was beyond their jurisdiction and premature.

Conclusion:
The Tribunal concluded that the rejection of the amendment request by the customs authorities was not justified. The Tribunal set aside the impugned order and directed the respondent-Commissioner to effect the amendments in the shipping bills as sought by the appellant. The Tribunal emphasized the facilitative intent of Section 149 and the need for a liberal approach in allowing amendments to support export promotion schemes. The order was pronounced in the open court on 07/12/2022.