2022 (4) TMI 217 - AT - Customs

Conversion of shipping bills from free to Advance License shipping bills - whether the authorities below were justified in denying the benefit of conversion of shipping bills into advance license Shipping Bills as requested by the appellant? - requirements of Section 149 of the Customs Act, 1962, stands satisfied or not - Board Circular No. 36/2010 dated 23/09/2010 and Circular No. 6/2002-Cus. dated 23/01/2002 - HELD THAT - The decision of the Hon ble Delhi High Court in the case of M/S. TERRA FILMS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS 2011 (4) TMI 13 - DELHI HIGH COURT was referred by the very same High Court in a later decision in KEDIA (AGENCIES) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS 2017 (1) TMI 203 - DELHI HIGH COURT wherein the Hon ble High Court has deviated from its earlier decision. Section 149 which provides for amendment of documents, which makes it clear that the amendment is permissible but the same is subject to Sections 30 and 41 ibid. There is also no doubt that none of these Sections prescribes any time limit but it is only the circular which is prescribing such time limit. Further, both the above Circulars referred to in the impugned order prescribe scale of physical examination under Para 2.1, as per which physical examination is to be undertaken at the port of export; under Para 2.1 (B) for export under Free Shipping Bills, no scale of examination is prescribed except where there is a specific intelligence. Under Para 2.1 (C) for exports under Duty Drawback DEPB Scheme, the scale of examination is between 2 to 10% for exports made to a non sensitive location, depending upon the FOB value of goods; under Para 2.1 (D) the scale of examination is again between 2 to 10% for exports made under EPCG/DEEC schemes. It is therefore clear from the above circulars itself that the amendment to a shipping bill after the goods are exported shall be on the basis of documentary evidence which was inexistence at the time of export of goods, such request for conversion is made within 3 months from the let export order, the examination report and other endorsement proves the fact of export and that the exported product is clearly covered under relevant SION/DEPB/Drawback as the case may be, the exporter has fulfilled all other conditions of export promotion scheme to which conversion was sought. Para 3 of Circular No. 36/2010 makes it clear that the Commissioner may allow conversion of shipping bills where the level of examination is same. When this is applied to the case on hand, the level under Para 2.1 (C) for exports under Drawback DEPB Scheme covering MEIS is same as the level of examination under Para 2.1 (D) where exports made under EPCG/DEEC schemes covering advance licenses, which implies that the request for conversion was to the schemes involving same level of examination and hence, the conversion of shipping bills are to be permitted as per Para 3 of Circular No. 36/2010. The denial of benefit is clearly unacceptable and not in terms of the spirits of Section 149 ibid - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Denial of benefit of conversion of shipping bills into advance license shipping bills.

Analysis:
The appellant, a manufacturer of motorized curtains and blinds assemblies, imported goods under an Advance Authorization License for use in manufacturing goods for export. The appellant intended to avail benefits under the Merchandise Export Incentive Scheme (MEIS) but failed to mention that exports were made against the obligation under the Advance License. A request was made to convert shipping bills to Advance License shipping bills, supported by the fact that goods were manufactured using imported goods and exported to fulfill obligations. The Principal Commissioner of Customs rejected the request, citing non-satisfaction of Section 149 of the Customs Act, 1962, and referred to a decision of the Hon'ble Delhi High Court in Terra Films Pvt. Ltd. case.

The appellant argued for conversion based on the provisions of Section 149 allowing amendments to documents, subject to prescribed conditions. The Circulars referred to in the impugned order prescribed conditions for amendment after export, requiring documentary evidence at the time of export, request within 3 months of export, examination reports, and fulfillment of export promotion scheme conditions. The authorities' failure to conduct physical examination cannot be attributed to the appellant, as the shipping bills clearly declared intent for MEIS benefits. The level of examination for MEIS exports was the same as for exports under EPCG/DEEC schemes, supporting conversion under Circular No. 36/2010.

The Tribunal found the denial of benefit unacceptable, not in line with Section 149, and set aside the impugned order, allowing the appeal with consequential benefits. The decision was pronounced in the Open Court on 01/04/2022.