2020 (4) TMI 81 - AT - Customs

Amendment in shipping bills u/s 149 of the Customs Act 1962 - rejection for the reason that documentary evidence should have been made available at the time of export - HELD THAT - A perusal of the notification dated 29 June, 2012 clearly indicates that the Central Government had granted rebate of service tax on the taxable service received by the exporter of goods and used for export of goods subject to the extent and manner specified in the notification. The notification provides that the rebate shall be granted by way of refund of service tax and that the rebate shall be claimed either on the basis of the rates specified in the Schedule of rates as per the procedure specified in paragraph 2 of the notification or on the basis of documents as per the procedure specified in paragraph 3 of the notification - In the instant case the Appellant had sought amendment in the shipping bills by claiming rebate on the basis of rates specified in the Schedule as provided for in paragraph 2 of the notification and not on the basis of paragraph 3 of the notification, for which documents were required to be produced. The Commissioner (Appeals) completely failed to distinguish the requirements of paragraph 2 of the notification and paragraph 3 of the notification. The documents which the Commissioner (Appeals) sought from the Appellant are in relation to the requirements of paragraph 3 of the notification and in fact even the information sought in the format is a format contemplated in paragraph 3 of the notification. Paragraph 2 of the notification required a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the notification. The appellant had not indicated the said declaration and it is this declaration that was sought to be submitted in the shipping bills through the amendment sought by the Appellant. Neither the Adjudicating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. It is, therefore, clear from the nature of the amendment that was sought by the Appellant in the Bills of entry and also from the provisions of section 149 of the Customs Act and the notification dated 29 June, 2012 that the amendment sought by the appellant in the shipping bills of entry was liable to be allowed since only a declaration was sought by the Appellant that rebate should be granted by refund of service tax paid on the specified services under paragraph 2 of the notification - Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Rejection of application under Section 149 of the Customs Act, 1962 for amendment of shipping bills.
2. Requirement of documentary evidence for amendment under Section 149.
3. Compliance with Notification No. 41/2012-ST dated 29 June, 2012.
4. Differentiation between procedures under Paragraphs 2 and 3 of the Notification.
5. Interpretation of Section 149 of the Customs Act by various courts.

Detailed Analysis:

1. Rejection of Application under Section 149 of the Customs Act, 1962 for Amendment of Shipping Bills:
The appeal concerns the quashing of the order dated 19 June, 2019, by the Commissioner of Customs (Appeals), which upheld the Assistant Commissioner's rejection of the appellant's application under Section 149 of the Customs Act, 1962. The appellant sought to amend 32 shipping bills filed manually between 1 April, 2013, to 31 March, 2015, to claim a rebate of service tax paid on specified services under Paragraph 2 of Notification No. 41/2012-ST dated 29 June, 2012. The Assistant Commissioner rejected the application on the grounds that the necessary documentary evidence was not provided at the time of export.

2. Requirement of Documentary Evidence for Amendment under Section 149:
The Assistant Commissioner and the Commissioner (Appeals) emphasized that amendments under Section 149 are allowed only based on documentary evidence existing at the time of export. The appellant failed to provide such evidence to support their claim for service tax rebate. The Commissioner (Appeals) noted that the appellant did not submit the required certified details of shipping bills, invoices, and other relevant information in the prescribed format.

3. Compliance with Notification No. 41/2012-ST dated 29 June, 2012:
The notification provides that the rebate shall be granted by way of refund of service tax paid on specified services, claimed either on the basis of rates specified in the Schedule (Paragraph 2) or on the basis of documents (Paragraph 3). The appellant sought an amendment to claim the rebate under Paragraph 2 but failed to make the necessary declaration in the shipping bills at the time of export. The Commissioner (Appeals) concluded that the appellant did not comply with the mandatory requirement of making such a declaration.

4. Differentiation between Procedures under Paragraphs 2 and 3 of the Notification:
The procedures under Paragraphs 2 and 3 of the notification differ significantly. Paragraph 2 allows claiming the rebate based on the rates mentioned in the Schedule, while Paragraph 3 requires producing specific documents. The Commissioner (Appeals) erroneously sought documents relevant to Paragraph 3, whereas the appellant's claim was based on Paragraph 2, which required only a declaration in the shipping bills.

5. Interpretation of Section 149 of the Customs Act by Various Courts:
The judgment references several court decisions interpreting Section 149, emphasizing that amendments should be allowed if based on documentary evidence existing at the time of export. In Commissioner of Customs v/s. Man Industries (I) Ltd., the Bombay High Court allowed amendments based on existing documentary evidence. Similarly, in Mohit Overseas Vs. Commissioner of Customs, the Delhi High Court permitted amendments under Section 149 if the notification was in existence at the relevant time. The Supreme Court in Share Medical Care vs. Union of India upheld the principle that an applicant could claim benefits under different heads if conditions are fulfilled.

Conclusion:
The Tribunal found that the Commissioner (Appeals) failed to distinguish the requirements of Paragraphs 2 and 3 of the notification. The appellant's request for amendment was valid under Section 149, as it was based on existing documentary evidence, and only required a declaration in the shipping bills. The impugned order dated 19 June, 2019, was set aside, and the appellant was permitted to carry out the amendments in the shipping bills. The appeal was allowed.

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