2022 (7) TMI 987 - AT - Customs

Seeking Conversion of shipping bills - conversion of Export Promotion Scheme from Duty Drawback(DBK) to Advance Licence - violation of condition No. 3(e) of Circular no. 36/2010-Cus dated 23.09.2010 - case of appellant is that though at the time of the clearance of the export goods the appellant have inadvertently claimed the drawback scheme but subsequently they offered to surrender the drawback amount along with interest - HELD THAT - The Learned Principal Commissioner has rejected the claim interpreting the clause 3(e) of the Para 3 of Circular no. 36/2010-Cus dated 23.09.2010 that since the appellant have availed the DBK Scheme under which the goods were exported the appellant had violated the Condition 3(e) of the Circular. On the careful reading of the said clause we find that the contention of the Principal Commissioner is incorrect in as much as though the appellant were granted the DBK but the appellant had already informed the department that they do not wish to get the DBK amount credited in their Bank account and if at all it is credited they offered to surrender same amount along with interest. This approach of the appellant, is as good as non availment of any Export Promotion Scheme. It is undisputed fact that the appellant though claimed the DBK in Shipping Bill but before receiving the amount of DBK informed the department that they do not want the credit of DBK amount - As per Section 149 it is clear that the amendment of export promotion scheme under the shipping bill can be permitted even if the goods have been exported only on the condition that the documentary evidence on the basis of which the amendment is claimed was in existence at the time when goods were exported. In the present case the goods were exported vide Shipping Bill No 3055417 dated 23.02.2018 whereas Advance Authorization (DEEC) No. 0810139972/2/03/00 is of dated 30.03.2017. Therefore, there is no doubt that the DEEC licence on the basis of which amendment is being sought by the appellant was very much in existence at the time of export. In this undisputed fact the condition of Section 149 of the Customs Act for the purpose of amendment in shipping bill stands satisfied - it is almost settled that when the condition prescribed under Section 149 is satisfied the conversion should be allowed. This is not a case of department, also there is a clear and independent provision under section 149 that without challenging the assessment an assessee can seek amendment under shipping bill even after assessment of export documents. Moreover, the learned principal commissioner has denied the conversion only on the ground that the appellant had violated condition prescribed under para 3 (e) of Circular no. 36/2010-Cus dated 23.09.2010, thus condition does not get violated therefore, the revenue s submission is not relevant. As regard the fact that whether the DBK amount has been received by the appellant or otherwise, the department is at liberty to verify the same. Needless to say that before making conversion of DBK shipping bill to advance license scheme the department has to ensure that if at all the DBK amount is credited to the appellant the same needs to be returned back to the department. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Request for conversion of Export Promotion Scheme from Duty Drawback to Advance License.

Analysis:
1. Facts of the Case: The appellant exported goods under Duty Drawback but later requested conversion to Advance License due to intention mismatch. The Principal Commissioner rejected the request citing violation of Circular no. 36/2010-Cus.

2. Appellant's Argument: The appellant's consultant argued that the appellant did not violate the circular as they offered to surrender the drawback amount. Section 149 of the Customs Act allows for such conversions based on existing documents at the time of export. Several judgments were cited to support the argument.

3. Revenue's Submission: The Revenue argued that the amendment sought was not a simple one but aimed at changing the assessment order, which requires an appeal before the Commissioner (Appeal). Cited a tribunal judgment in Tata Teleservices (M) Ltd case.

4. Tribunal's Decision: The tribunal analyzed the circular's conditions and found the Principal Commissioner's interpretation incorrect. The appellant's actions did not constitute availing another scheme. Section 149 allows for amendments based on existing documents at the time of export, which was satisfied in this case. Various judgments supported this interpretation.

5. Conclusion: The tribunal set aside the impugned order, allowing the appeal with consequential relief. The department was advised to verify if the drawback amount was credited and ensure its return if needed.

This detailed analysis highlights the legal arguments, interpretations of relevant laws, and the tribunal's decision in favor of the appellant's request for conversion of the Export Promotion Scheme, emphasizing compliance with legal provisions and supporting judgments.