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TMI Blog2013 (10) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... td., No. 88-A, Electronic City, Hosur Road, Bangalore. 1.4. The appellants imported the permitted components required for the EDC terminals on various dates ending on 31.07.2006. These duty-free components were used for the manufacture of the export product specified in the Advance Licence. 1.5. The export goods were manufactured by M/s. Flextronics Technologies (India) Pvt. Ltd. and exported directly from the supporting manufacturer's premises. For this purpose, a B1 bond bearing No. 44/2006 was executed by the appellants undertaking to export the goods cleared from the supporting manufacturer's premises and furnish the proof of export to the jurisdictional Central Excise officer within the specified period. 1.6. As and when the consignment of EDC terminals of a particular quantity was ready for dispatch at the supporting manufacturer's premises, the appellants applied for and obtained the necessary CT-1 certificate from the jurisdictional Central Excise officer and furnished the same to the supporting manufacturer to enable clearance of the finished goods without payment of duty for the purposes of export. The appellants, as also the supporting manufacturer, jointly filed ARE- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsion of one scheme to another may be permitted in accordance with the provisions of Section 149 of the Customs Act 1962 on a case to case basis which would show that according to the understanding of the Board also, the conversion is nothing but amendment. 4. In any case in my opinion it is not necessary for me to go into this aspect for coming to the conclusion in view of the fact that the Board's Circular and observation of Hon'ble High Court of Delhi are contrary to each other and the circular issued by the Board in 2010 was not brought to the notice of the Hon'ble High Court of Delhi when the decision in the case of Terra Films Pvt. Ltd. was rendered. 5. Under these Circumstances, I proceed to treat the case as one of amendment only even while making it clear that in view of the lack of clarity on the issue I am not going to consider this issue in detail at this stage since I feel that it is not required for the case on hand. Section 149 of Customs Act reads as under: "Amendment of documents - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the custom house to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the export was in fulfillment of obligations under an Advance Licence. As already mentioned earlier the shipping bill was also a free-shipping bill and there was no examination in the port since the examination was done by the Range Officer and the seal was affixed by the Central Excise officer. Therefore the contemporaneous record we have is only a free shipping bill and an ARE-2 wherein no declaration regarding advance licence was available and the examination was done by the inspector who did not draw the sample also. 7. In the above background, the Commissioner has come to the conclusion that in this case the very fact that the examination was conducted by the inspector would show that the department treated the consignment as one of export without claiming any incentive. He has also observed that as per the existing instruction, the consignment should have been examined only by a Superintendent and the very fact that the examination was conducted by the inspector would show that the department had treated it as a free export without claiming any benefits and under these circumstances, the conversion cannot be allowed. On going through the records I find that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary evidence in existence at the time the goods were exported. The Commissioner in the remand case has rightly observed that the present case in fact relates to the request for conversion of shipping bills from one export promotion scheme in to another and was not 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 circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument produced to the department at the time of export, that would fulfill the requirement. As already observed the utilization of raw materials imported was not in any of the documents submitted at the time of export. 8. The learned counsel also relied upon several decisions of the Tribunal to support his contention that in several cases the Tribunal had permitted conversion of free shipping bills to Advance Licence/Drawback shipping bills. I find that in none of the cases the issue involved was the adequacy or otherwise of an examination of the consignment by an inspector which was required to be done by a Superintendent. In the absence of any specific submission and in the absence of certificate issued, those decisions cannot be applied. In my view there are no decisions in favour of the appellant. 9. Further I also would like to observe here that if the appellants were to mention all the relevant details, the fact that inspector only examined the consignment and therefore appellant cannot be denied the-benefit could have been a view possible. Unfortunately for the appellant neither in the shipping bill nor in ARE-2 have declared the Advance Licence No. or the fact that expor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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