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TMI Blog2012 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The appellants exported Losartan Potassium Tablets under free Shipping Bill No. 3857774, dated 13-8-2010. Subsequently under letter dated 30-10-2010, the appellants submitted a request for conversion of the said free Shipping Bill to DEPB Shipping Bill. Such request was made on the following grounds as stated in the impugned Order-in-Original :- (a) The goods have been exported prior to 2 months i.e. during August 2010. (b) Documentary evidence such as packing list and invoice would prove that the goods have been exported as per the declaration. (c) The Superintendent of Central Excise has certified that the value and the description in the invoice and packing list tally and that they have been packed in the corrugated boxes. (d) We have not claimed any other export benefit. 3. During personal hearing before the adjudicating Commissioner, it was submitted on behalf of the appellants that the impugned goods were factory stuffed under. Central Excise supervision and therefore authenticity of the export goods was established. Reliance was also placed on Board s Circular No. 4/2004-Cus., dated 16-1-2004 and subsequent Circular No. 36/10-Cus., dated 23-9-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank v. Commissioner of Income Tax - 1999 (111) E.L.T. 673 (S.C.), the Hon ble Supreme Court has held that the departmental circulars are not meant for contradicting or nullifying any provisions of the statute but are meant for ensuring proper and efficient administration of statute. The Tribunal has held in the following cases that conversion of Shipping Bills need to be allowed under Section 149 of the Customs Act :- (a) Essar Oil Ltd. v. Commissioner of Customs - 2010 (259) E.L.T. 295. (b) Sologuard Medical Devices v. Commissioner of Customs - 2007 (216) E.L.T. 62. (c) JSW Steel Ltd. v. Commissioner of Customs - 2011 (264) E.L.T. 267. (v) Since the impugned goods were factory stuffed under the supervision of Central Excise officers, the authenticity of the report cannot be doubted and the request for conversion cannot be rejected. (vi) Documentary evidence such as packing list, invoice certified by the Central Excise was submitted by the appellants to prove that the goods were exported as per the declarations. The Superintendent of Central Excise had also certified the value under description in the invoice and packing list and that the impugned goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods is being permitted mostly on the basis of self-declaration made by the exporters on the shipping bills. Such self-assessment scheme necessarily casts the responsibility on the exporter to make up his mind at the time of filing shipping bills as to which export promotion incentive he likes to avail. With the introduction of the system of on-line assessment, such request for conversion at a later date creates difficulties and it is not advisable to encourage such conversion. It is, therefore, clarified that conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed. It is thus clear from the above, that the circular dated 16-1-2004 did not allow conversion of free Shipping Bills into DEPB Shipping Bills and for the same, the reasons were also provided in the circular. The subsequent circular dated 23-9-2010, inter alia, provides as under :- Free shipping bills (shipping bills not filed under any export promotion scheme) are subject to nil examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate annexure. The way Section 149 is worded, empowering the proper officer to authorize amendment, and the condition which is prescribed thereunder regarding existence of documentary evidence at the time of export, makes it doubtful if the legislature intended the provision under Section 149 to be used for substitution of Shipping Bills. I find that the matter was taken up in an appeal before the Hon ble Bombay High Court in the case of Commissioner of Customs v. Man Industries (I) Ltd. - 2007 (216) E.L.T. 15 (Bom.) and a specific question was raised as to whether amendment of documents as envisaged under Section 149 and conversion of Shipping Bill from one scheme to another was same or different. However, the appeal was decided without answering this question as the Hon ble High Court felt, in that case, that it concerned merely finding of fact on the basis of the document furnished and there was no question of law involved. 12. I also find that the power under Section 149 is to be exercised by the proper officer. The proper officer is defined under Section 2(34) in relation to any functions to be performed under the Act to be the officer of customs who is assigned those func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nying conversion of free Shipping Bills into DEPB Shipping Bills. Both the circulars are based on considerations of public policy taking into account the risks to public revenue as well as the need to facilitate genuine exporters. 13. In the case of Commissioner of Central Excise, Coimbatore v. Universal Radiators Ltd. - 2011 (273) E.L.T. 20 (S.C.), the Hon ble Supreme Court took note of another case decided by a Constitution Bench of the Hon ble Supreme Court in Commissioner of Central Excise v. Hari Chand Shri Gopal - 2011 (1) SCC 236 = 2010 (260) E.L.T. 3 (S.C.). In these two cases, the Hon ble Supreme Court considered the matter of exemption and the pre-condition of entitlement to avail such exemption and held that the Tribunal had committed an error in overlooking the object and purpose of the procedure laid down in Chapter X and further held that such detailed procedures have been laid down to curb diversion and mis-utilisation of goods which were excisable. I find that the restrictions and the conditions which have been laid down in the impugned circulars issued by the Board in the context of conversion of free Shipping Bills to Shipping Bills under export promotion scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time the export in the present case was made. The case of Nucleus Satellite (supra) is a Single Member decision. This also relates to an export which had taken place during the currency of the earlier Circular No. 6/2003. This decision also proceeds on the basis that the Board s circular does not mention any statutory bar for denying the conversion. With great respect, I am of the view that as discussed in the earlier paragraphs, the circular does put conditions and limitations in regard to substitution of Shipping Bills and the same can be construed as limiting exercise of the powers of the proper officer under Section 149 and this has been done for valid reasons. Further, as pointed out earlier, Section 5(1) of the Customs Act, 1962 itself empowers the Board to place conditions and limitations in exercising powers and discharging the duties conferred or imposed on an officer of customs under the Act. Hence, the impugned Circulars cannot be held to be lacking statutory basis. 16. In view of my finding as above, I am of the view that both the impugned circulars of 2004 and 2010 have been validly issued and the impugned order passed by the adjudicating Commissioner following ..... X X X X Extracts X X X X X X X X Extracts X X X X
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