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2022 (12) TMI 1112 - AT - CustomsSeeking conversion of shipping bills - request for Scheme Code change from 00-Free Shipping Bill to 03-Advance Authorization Shipping Bill in respect of four shipping bills - Double Layered Laminated Glass - whether the Revenue is justified in rejecting the request of the appellant for conversion of free shipping bills into Advance Authorization shipping bills for the reasons of limitation as well as non-fulfilment of conditions of paragraph 3(b)(c)(d) of the Board Circular No. 36/2010 ibid? HELD THAT - A perusal of one of the shipping bills - Shipping Bill No. 8272820 dated 10.03.2015, reflects the file number, since as on the date of the said shipping bill, the appellant had not received the physical copy of the Advance Authorization. The same is the case with respect to the other three shipping bills which are in dispute, as well. By this, it is abundantly clear that the appellant, having requested for Advance Authorization, had filed the shipping bills in anticipation of their Advance Authorization. Further, as pointed out by the Learned Advocate for the appellant, the DGFT did not issue the EODC nor did it communicate any deficiency until the appellant-exporter approached the Hon‟ble High Court and hence, the delay cannot be attributed to the appellant-exporter alone. The appellant has established its bona fides; but for the inaction by the DGFT, perhaps there would not have been any delay in seeking conversion/ amendment under Section 149 ibid. Vide letter dated 21.01.2016 itself the appellant did communicate to the DGFT for issuance of EODC by contending that it had fulfilled the export obligation, in response to which the said authority had replied on 25.01.2016 asking for bank realization certificates and, if at all there were any deficiencies, nothing prevented the said authority from communicating the same to the appellant-exporter. From a perusal of the Form A.R.E.-1 with PART-A and PART-B, I am also of the view that both the Central Excise Officer as well as the Customs Officer have certified having opened and examined the relevant packages /consignment under those very shipping bills which are under dispute. Hence, there is no such violation as flagged in the impugned order to the conditions of paragraph 3(b)(c)(d) of the Board Circular ibid. Learned Advocate for the appellant also seriously contended that the period of limitation for filing an application seeking conversion within the meaning of Section 149 ibid. has not been provided under Section 149, but the same has only been provided in the Board Circular No. 36/2010 ibid. and the Hon‟ble jurisdictional High Court in M/s. Global Calcium Pvt. Ltd. v. Commissioner of Customs, Chennai 2017 (6) TMI 1359 - MADRAS HIGH COURT as well as the Hon‟ble High Court of Kerala in M/s. Parayil Food Products Pvt. Ltd. v. Union of India 2020 (10) TMI 1141 - KERALA HIGH COURT have considered the issue of the above time-limit stipulated in the Board Circular and held that the stipulation of the period of limitation was in utter violation of the statutory provision of Section 149 ibid. and that the request for conversion could not be denied as time-barred by resorting to the Board Circular. The denial of conversion from free shipping bills to Advance Authorization shipping bills by the lower authority and the impugned order, being bad in law, are set aside - Appeal allowed.
Issues:
Request for Scheme Code change from "00-Free Shipping Bill" to "03-Advance Authorization Shipping Bill" for four shipping bills. Analysis: The appellant, an exporter of "Double Layered Laminated Glass," sought a Scheme Code change for four shipping bills from "00-Free Shipping Bill" to "03-Advance Authorization Shipping Bill." The appellant had an Advance Authorization for import, leading to an export obligation to export Double Layered Laminated Glass. After fulfilling the export obligation, the appellant applied for an Export Obligation Discharge Certificate (EODC) from the DGFT, which was not issued due to alleged deficiencies in the shipping bills. The Commissioner of Customs rejected the conversion request citing violations of procedures and conditions under Board Circular No. 36/2010. The main issue was whether the rejection of the conversion request was justified. The Tribunal analyzed the documents and shipping bills submitted by the appellant. It noted that the appellant had filed the shipping bills in anticipation of receiving the Advance Authorization. The Tribunal found that the delay in seeking conversion was not solely attributable to the appellant, as the DGFT did not issue the EODC promptly despite the appellant's communication. The Tribunal concluded that there was no delay as per the Board Circular. Further, the Tribunal examined the Form A.R.E.-1 and found that both the Central Excise Officer and the Customs Officer had certified the relevant packages under the disputed shipping bills. Referring to precedents, including a decision by the Bangalore Bench of the Tribunal and a Chennai Bench case, the Tribunal highlighted that the essential requirements for conversion had been fulfilled by the appellant. It also emphasized that the rejection based on physical examination requirements and time limitations specified in the Board Circular was legally unsustainable. Consequently, the Tribunal set aside the lower authority's denial of the conversion request, deeming it legally flawed. The appeal was allowed, and the conversion from free shipping bills to Advance Authorization shipping bills was permitted.
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