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TMI Blog2014 (8) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... exported 10 consignments of Raw Cotton of CTH 5201 totally v/a Rs. 13.51 crores under DFIA shipping Bills. The appellant's export was to China and such exports were on 'quota basis'. Since Appellant could not fulfill export obligation, Appellant requested DGFT, New Delhi for cancellation of DFIA in terms of Para 4.28(e) of HBP Vol-I 2009-14 vide their request dt. 28-06-2013. Considering no imports made against said DFIA, DGFT New Delhi cancelled DFIA No. 0510306798 dated 31-10-2011 vide their communication dated 10-07-2013. After cancellation of DFIA No. 0510306798 dt. 31-10-2011, appellant requested the commissioner of Customs(Prev), Jamnagar for conversion of Shipping Bills from DFIA to Drawback scheme on 20-07-2013, which has been rejected only on the ground that request for conversion is not made by the exporter within three months from the date of the Let Export Order (LEO). 3. During personal hearing, on behalf of Appellant shri P.P. Jadeja argued that the appellant is exporter of the Indian Raw Cotton of CTH 5201 who has fulfilled export obligation under DFIA scheme in past cases and availed such benefits on export of goods, without any dispute from either side. He also arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied for the procedural aspects like in this case. Making request for conversion is a procedural aspect, when the export of goods is the prime condition. Therefore, when the export is not in any dispute, substantial benefit attached to export cannot go away on procedural aspects. vii) The provisions of Rule 12(1) of Customs & Central Excise Duties Drawback Rules, 1995 (Drawback Rules) and also proviso empowers the Commissioner to condone non-observance of provisions of Rule 12 and allow drawback. As such non-observance of condition was beyond appellant's control. The appellant's export was only to China and such exports were on 'quota basis' and that when such quota for export to China was already exhausted by other such exporters, there was no possibility for the appellant to export further quantity to China; viii) After exports against DFIA scheme, there was no imports made by the appellant. Hence appellant has not received any benefits on exports. ix) There is no distinction in the DFIA or Drawback Shipping Bills except showing that the said export is made under claim for drawback or DFIA. Commissioner is empowered to condone non-observance of procedure under Rule 12(1) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not clearly provide that Commissioner cannot allow amendment under Section 149 of Customs Act 1962, Commissioner could have considered the request under this section. Since Raw cotton according to the appellants has been exported the quantity, description and other details would have been verified since let export order is given in the case of ships by the customs officers after loading takes place. xiii) Purpose of putting such such condition of time limitation is that conversion is not matter of right and it should not result in availment of double benefits. In case of abnormal delay in making such request for Conversion of shipping bill, Department would not be in a position to ascertain as to whether duty free goods were utilised in export product. However, in the present case, since there is no import, the question of any benefit is not taken at all so far. xiv) Under these circumstances we request to direct the Commissioner to allow conversion of the shipping bills into drawback shipping bills and eligibility of the appellants to drawback, the amount of drawback etc. would be decided in accordance with law by the appropriate authorities of customs. xv) We also rely upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot fulfill export obligation, they requested DGFT, for cancellation of DFIA in terms of Para 4.28(e) of HBP Vol-I 2009-14 and considering no imports made against said DFIA, DGFT New Delhi cancelled DFIA on 10-07-2013. After cancellation of the said DFIA, appellant requested the commissioner of Customs (Prev), Jamnagar for conversion of Shipping Bill from DFIA to Drawback scheme on 20-07-2013, which has been rejected as request for such conversion is not made by exporter within three months from the date of Let Export Order (LEO). 6. The issue involved in this case is whether the appellant's application for conversion of Shipping Bills from DFIA to Drawback scheme needs to be allowed or otherwise, when such application filed on 20-07-2013 is made after the goods have been exported, no imports are made against such DFIA and cancellation of such DFIA on 10-07-2013 by DGFT. 7. The undisputed facts are that documents relating to the exports i.e. Invoice, Shipping Bills, Bills of lading and the Bank Realization Certificate clearly indicate that the goods were exported and said goods were described in documents as 'Indian Raw Cotton Shankar-6 of CTH 5201'. It is also undisputed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horize 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. 8.3 Documents submitted by the appellant like contracts for exports, Test analysis reports by Cotton Association of India, Shipping Bills were signed & cleared by proper Customs officers and Bills of Lading, BRC for realisation of currency etc. specifically indicate that the goods which were cleared for export were 'Indian Raw Cotton Shankar-6 of CTH 5201'. Perusal of the analytical certificate given by M/s Cotton Association of India seems to co-relate the goods in the shipping bills wherein the description was given as 'Indian Raw Cotton Shankar-6 of CTH 5201. 8.4 Appellant's submission of non observance of provisions of Rule 12(1) of Drawback Rules could be also treated beyond their control, when expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; Circular dated 23-9-2010 is not mandatory at all. In fact, the latest Circular dated 23-9-2010 shows that in view of the decisions of the Tribunal and this court on the question, the Government themselves had decided to liberalise the provision regarding even conversion from one scheme to another. 8.8 I find that in the relied upon decisions on behalf of appellant, 2013(298)ELT-123(Tri-Ahd) Rajguru Impex (India) Ltd. vs CC, this Bench has also allowed conversion from DFRC to DEPB scheme observing in Para 9, 10 as under:- Description of goods in Shipping Bill had to be taken as one covering goods which were exported - Since that description was exactly as mentioned in DEPB schedule, application for conversion had to be considered sympathetically, and allowed - It was more so as EXIM policy was designed to encourage exports and in facts of case liberal view was called for. 8.9 I find that in the relied upon decisions on behalf of appellant, 2013 (288) E.L.T. 265 (Tri. - Chennai) - Diamond Engg. (Chennai) P. Ltd vs CC, Bench has allowed conversion from DEEC to DEPB observing as under:- EXIM - Shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are totally different than the issue in hand. I find that on deeper perusal of the judgment, it transpires that supporting evidences were not in existence at time of export of goods. In view of this, I find that the Hon'ble High Court has taken a view in facts of the said case, which may be applicable in situation which is similar or identical case. For the case in hand, appellants exports are not in any dispute as regards description, quality, quantity, value, BRC etc., having no import against DFIA the substantial benefit on such exports now available need not be denied. 10. Division Bench of this Court has taken view that conversion can be allowed in such cases, I do not find any reason to deviate from such a view already taken. Accordingly, in view of the foregoing, I set aside the impugned order and direct lower authorities to convert DFIA Shipping Bills in this appeal to drawback shipping bills. I also make it clear that I have allowed only conversion into drawback Shipping Bills and eligibility of the appellant to the amount of drawback and its quantum etc. would be decided in accordance with the law by the appropriate authorities of customs. 11. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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