2023 (10) TMI 12 - HC - Customs

Permission to amend 32 shipping bills from free shipping bills to drawback shipping bills under Section 149 of the Customs Act, 1962 - HELD THAT - A reading of the impugned order indicates that the only reasoning assigned is that the importer was unable to satisfy the Deputy Commissioner that it had intended to file the shipping bills under the export work relating to drawback - the aforesaid reasoning cannot be sustained since it is not incumbent upon the exporter to prove an intention to claim drawback or other benefits. Section 149 of the Act enables an exporter to claim amendments in the shipping bills for any reason that may be deemed expedient. However, that provision nowhere speaks of an obligation or duty cast upon the exporter to establish intendment. In the present case, the impugned order does not rest on an impossibility to scrutinize or dispose of the application for amendment nor does it allude to any other practical difficulty or aspect of impossibility which would have hindered consideration of the request made by the petitioner. In Terra Films 2011 (4) TMI 13 - DELHI HIGH COURT , the Division Bench had on facts noted that the respondents had taken the position that it would be impossible to accede to the request for amendment. In view of the aforesaid, we find ourselves unable to sustain the view as expressed by the Deputy Commissioner in the impugned order. The impugned order dated 06 September 2022 is hereby quashed and set aside - petition allowed.

Summary

Issues:
The validity of the order negating the petitioner's request to amend shipping bills from free to drawback bills under Section 149 of the Customs Act, 1962.

Comprehensive Details:

Issue 1: Validity of the order to negate the amendment request

The petitioner sought to amend 32 shipping bills from free to drawback bills due to inadvertence in categorization during exports in 2016. The respondents argued against the amendment, citing a long lapse of time and Circular No. 36/2010 which restricts such conversions, as highlighted in M/s Terra Films Pvt. Ltd. v. Commissioner of Customs 2011 SCC OnLine Del 1713. The Court noted that Section 149 of the Act allows for amendments based on existing documentary evidence at the time of export, emphasizing that the discretion to permit amendments should be exercised judiciously. The Court found the Deputy Commissioner's reasoning, based on the importer's alleged failure to prove an "intention" to claim drawback, unsound as Section 149 does not mandate such proof. The impugned order was quashed, and the matter remitted for fresh consideration, with all contentions left open.

Key Points:
- Section 149 allows amendments based on existing evidence at the time of export.
- Discretion to permit amendments should be exercised judiciously.
- No obligation for the exporter to prove intention to claim benefits.
- Impugned order quashed, matter remitted for fresh consideration.

Significant Legal Phrases:
- Section 149 of the Act
- Circular No. 36/2010
- M/s Terra Films Pvt. Ltd. v. Commissioner of Customs 2011 SCC OnLine Del 1713