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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 ..... n 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 23-9-2010 as well as on the Tribunal's decision in the case of Midex Global Pvt. Ltd. v. C.C.E., Pune - 2010 (261) E.L.T. 1041. 4. The adjudicating Commissioner has rejected the appellant's request for conversion of the free Shipping Bill into DEPB Shipping Bill leading to this present appeal. The reasons given by the adjudicating Commissioner are as follows :- (i) No specific reason for the conversion has been given by the appellants. (ii) The two cited circulars issued by the Board do not permit conversion of free Shipping Bill into any export promotion Shipping Bill like DFIA, DEPB etc. Para (iv) of the circular dated 23-9-2010 states that free S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 goods have been packed in the corrugated boxes. (vii) It is incorrect to say that export under DEPB scheme require vigorous scrutiny and different examination. 6. The learned counsel at the time of personal hearing for the appellants reiterates the above grounds taken in the appeal and submits that the conversion of the free Shipping Bill into DEPB Shipping Bill should be allowed. Subsequently, copies of the following case laws relied upon by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest 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 may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1) of the Customs, Central Excise and Service Tax Drawback Rules, 1995." 9. It is seen from the above that the revised circular also does not permit conversion of fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 functions by the Board or the Commissioner of Customs. In this case, the jurisdictional Commissioner of Customs himself has dealt with the case and he has thus acted as the proper officer. The Five Judges Bench of the Hon'ble Supreme Court in the case of Durga Prasad v. H.R. Gomes, Superintendent (Prevention) Central Excise, Nagpur & Another - 1983 (13) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 schemes have a proper rationale and the same are intended to curb mis-utilisation of export benefits. Therefore, the Tribunal should not overlook such restrictions or nullify the same. 14. Coming to factual considerations of the present case, I further find that the appellants had filed a free Shipping Bill for 8 items of export and against each of them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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