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2024 (2) TMI 1267 - AT - CustomsApplication for conversion of shipping bills - time limitation - Drawback (Scheme Code 19) to Drawback and ROSCTL (Rebate of State and Central Taxes and Levies) SB (Scheme Code 60) - whether the period of time limit of three months prescribed in the circular is binding in view of the provisions of Section 149 of the Customs Act - HELD THAT - We find that the export goods is not in dispute and therefore, the entitlement of the appellant to claim the benefit under the scheme is clearly admissible and the same cannot be denied on account of any procedural lapse as provided in the circular. We also find that the examination level of Drawback Scheme and that of Drawback along with ROSCTL Scheme is the same and therefore, there is no reason to deny the benefit of the scheme. We also find that the examination level of Drawback Scheme and that of Drawback along with ROSCTL Scheme is the same and therefore, there is no reason to deny the benefit of the scheme. The error made by the appellant in making the application for conversion before the Commissioner, Nhava Sheva is concerned, the same needs to be ignored in terms of the response given by the Cell at Mumbai, the appellant had made the on line application on 31.03.2021. The appellant had justified the necessity of conversion as they had produced the documents in terms of the Section 149 of the Act which entitles an amendment in the Bill of Entry even after the imported goods have been cleared for home consumption except on the basis of documentary evidence which was in existence at the time the goods were cleared and in the present case it is not that such documents were not in existence at the time of export of goods. Circular was meant to liberalise the migration from one scheme of the Foreign Trade Policy to another and it could not have imposed rigid restrictions which are not contemplated in the parent statute and in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another, Haldiram Foods International Pvt. Ltd. Vs. Commissioner of Customs 2020 (12) TMI 1229 - CESTAT MUMBAI . The impugned order denying the amendment on the ground that the same has been made by the exporter beyond the period of three months from the date of Let Export Order in terms of the circular, deserves to be set aside. Accordingly, the appeal is allowed with consequential relief as per law.
Issues Involved:
1. Conversion of Shipping Bills from Drawback (Scheme Code 19) to Drawback and ROSCTL (Scheme Code 60). 2. Time limit for amendment under Section 149 of the Customs Act. Summary: Issue 1: Conversion of Shipping Bills from Drawback (Scheme Code 19) to Drawback and ROSCTL (Scheme Code 60) The appellant challenged the Order-in-Original dated 04.10.2021, which rejected their application for conversion of Shipping Bills from Drawback to Drawback and ROSCTL. The appellant cleared consignments under the Drawback Scheme due to a clerical error by their Customs Broker. Upon realizing the error, they applied for conversion, initially to the wrong authority, and then correctly to the Commissioner of Customs. The Commissioner rejected the application citing a three-month limitation period as per CBEC Circular No. 36/2010-Cus dated 23.09.2010. Issue 2: Time limit for amendment under Section 149 of the Customs ActThe appellant argued that Section 149 of the Customs Act does not prescribe a time limit for amendments and that the CBEC Circular's three-month limit is without legal authority. The Tribunal noted that the issue of time limits under Section 149 has been settled in various decisions, which held that the statutory right to amend documents cannot be curtailed by circulars. The Tribunal cited several judgments, including K.G. Denim Ltd. and Visoka Engineering Pvt. Ltd., which support the view that no time limit is prescribed under Section 149 and that circulars cannot override statutory provisions. The Tribunal found merit in the appellant's submission that the clerical error was bona fide and that the delay in applying for conversion was not unreasonable. The Tribunal emphasized that the benefit of the scheme cannot be denied due to procedural lapses, especially when the goods were eligible for the scheme at the time of export. The Tribunal concluded that the delay was not substantial enough to deny the benefit and that the conversion should be allowed. The Tribunal set aside the impugned order and allowed the appeal, granting consequential relief as per law. (Pronounced in open Court on 26th February, 2024)
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