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TMI Blog2013 (3) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 - Dated:- 13-9-2012 - Ashok Jindal, J. Appellant Rep by: Shri S. Jaikumar, Adv. Respondent Rep by: Shri D.P. Naidu, SDR Per: Ashok Jindal: This appeal is filed by the appellants against the impugned order, wherein the request for conversion of Shipping Bill No.3780220, dated 11.06.2010 from Advance Licence Scheme to DEPB Scheme was rejected. 2. The brief facts of the case are that one M/s.Mesto Minerals (India) Pvt. Ltd., Mumbai exported 'fabricated steel hardware structure' made out of MS HR plates/sheets/strips to their counterpart in Brazil, vide the above mentioned shipping bill under Advance Licence No.0410091384, dated 05.07.2007 with M/s.Diamond Engineering (Chennai) Pvt. Ltd. [Appellants] as a third party exporter. On 27.07.2011, the appellants sought conversion of shipping bill from Advance Licence Scheme to DEPB Scheme on the ground that the shipping bill was wrongly filed under Advance Licence Scheme due to wrong communication of their customer i.e., M/s.Mesto Mineral (India) Pvt. Ltd., and that they have not availed any export benefit on the above mentioned shipping bill. It is also submitted that it took a very long time for the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice of the Board that "the Tribunal in a series of judgments have held that amendment to shipping bill after export of goods is governed by proviso to Section 149 of the Customs Act, 1962 and if the requirements of the said proviso is fulfilled, conversion of shipping bills should be allowed". Therefore, it was clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination [for example, from Advance Authorisation/DFIA Scheme to Drawback/DEPB Scheme] or within the scheme involving same level of examination [for example, from Drawback Scheme to DEPB Scheme or vice versa) irrespective of whether the benefit of Export Promotion Scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not, therefore, he prayed that on merits the request be granted. On the limitation aspect, he submits that as per Section 149 of the Customs Act, 1962, no time limit is prescribed, therefore, the appellants are entitled for conversion. He also submitted that the same view was taken by this Tribunal in the case of The Commissioner of Central Excise, Nhava S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the Custom House to be amended: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." 7. As per the provisions of Section 149 ibid, the Customs officer has discretion to authorise any shipping bill to be amended on the basis of documentary evidence which was in existence at the time when the goods were cleared/exported. From mere reading of the said provisions, it can be ascertained that there is no time limit prescribed for conversion of shipping bills from one scheme to another and the only condition imposed is that on the basis of documentary evidence, which were available at the time when the goods were cleared/ exported, the Customs officer can amend the document. As regards limitation, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely of an amendment in the shipping bill. The request was made for conversion from one scheme to another after the lapse of long period of more than one year. It was a case of request for "conversion" and not of "amendment" inasmuch by converting from one scheme to another, it was not only addition of word 'cum' duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the Proper Officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived by the Commissioner has been rightly upheld by the CESTAT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record discloses that the assessee had paid the duty in respect of indigenous goods. However, he did not claim the CENVAT credit. Therefore, he claimed benefit of duty drawback under the Drawback Rules. The Appellate Commissioner held that the circular or the rules do not permit such a duty drawback. It is not in dispute that the Board has issued a circular clarifying the legal position that such a conversion is permissible. Once such a conversion is permissible, the assessee is entitled to duty drawback and benefit of duty drawback is a matter required to be calculated by the Appellate Commissioner. It is in those circumstances, after setting aside the finding of the Commissioner that such a conversion is not permissible, the Tribunal has remanded the matter back to the Commissioner to decide the permissibility of duty drawback in accordance with Rules. Therefore, the order passed by the Tribunal is in accordance with the law and does not suffer from any infirmity, which call for interference. In that view of the matter, we do not see any merit in this appeal. In the light of what we have stated above, the appeal is rejected. The substantial questions of law framed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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