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TMI Blog2010 (12) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ls - This conversion can be permitted only on the strength of an advance licence issued by the licensing authority on or before the date of filing of the relevant shipping bill - If they intended to claim the export incentive, they would have filed the shipping bills after obtaining the advance licence. In this circumstance, I am not inclined to find fault with the finding of afterthought recorded by the Commissioner - In the result, the Commissioner’s order is sustained and this appeal is dismissed - C/993/2009 - A/14/2011-WZB/C-IV/SMB - Dated:- 15-12-2010 - Shri P.G. Chacko, J. REPRESENTED BY : Shri A. Sai Prasad, Advocate, for the Appellant. Shri B.P. Pereira, JDR, for the Respondent. [Order]. The appellant had expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter was one issued by the JDGFT, dated 28-3-2006. In relation to the other shipping bill dated 22-11-2006, the advance licence produced by the exporter was the one issued on 8-1-2007. Obviously, when the shipments were made, these advance licences were not in existence, though the exporter s applications to the JDGFT for advance licences were pending. The Commissioner of Customs declined conversion of the shipping bills vide order dated 19-8-2009 after observing that no amendment of the shipping bills could be allowed under Section 149 of the Customs Act in the absence of the advance licences on the date of filing of the shipping bills. The Commissioner relied on CBEC Circular No. 4/2004-Cus., dated 16-1-2004 which, in para 3.2 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court dismissed the department s appeal filed against the Tribunal s order after observing that there was no substantial question of law involved in the case. The learned counsel submits that the present appeal is liable to be allowed in view of the above case law. 3. The learned JDR, opposing the above argument, submits that the appellant is not entitled to the relief prayed for inasmuch as they did not satisfy the requirements of the proviso to Section 149 of the Customs Act. No shipping bill could be allowed to be amended after exportation of the goods except on the basis of documentary evidence which was in existence at the time of such exportation. In the present case, the advance licences were not available when the goods were expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erified the records and found the same to be true. Part-B of the ARE-1 was a certificate of the customs officer who certified that the consignment was shipped under his supervision. This document did not indicate that the goods were examined by the customs officer. The learned JDR has submitted that such examination of goods under export was necessary whenever the exporter claimed some export incentive. There can be no quarrel about this submission. The shipping bills clearly indicate NO EXPORT INCENTIVE . Obviously, the customs officer did not have to examine the goods as the exporter did not claim any export incentive in the export document. The question which now arises for consideration is whether amendment of the shipping bills could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en examined. In the case of Kiran Pondy Chems (supra), the Tribunal upon examination of export documents found that the exports were actually made under the DEEC scheme unlike in the present case. Therefore the said decision of the Tribunal or similar subsequent decisions will not be applicable to the present case. In the case of Man Industries (India) Pvt. Ltd. (supra), the Tribunal observed inter alia, thus : It is not in dispute that the requirements of abovementioned proviso (proviso to Section 149 of the Customs Act) are satisfied by the appellant and consequently Commissioner ought to have allowed the request for conversion of the shipping bills. No wonder, in the said case, the Hon ble High Court held that no substantial questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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