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TMI Blog2016 (3) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... tallic Bellows (I) Pvt Ltd Vs CC (Exports) Nhava shera [2008 (3) TMI 198 - CESTAT MUMBAI], the case to be remanded back to the lower authorities. Therefore, a power given by Sec 149 of the Customs Act 1962 to the officers under a statute can not be curtailed by a Circular issued by CBEC and to be remanded back to allow conversion of free shipping bills to Drawback shipping bills under Sec 149 ibid, if otherwise permissible, independent of CBEC Circular dt 16/1/2004. Decided in favour of appellant by remand - Appeal No. C/612/2009 - FINAL ORDER NO. 75188/2016 - Dated:- 17-2-2016 - D M Misra, Member (J) And H K Thakur, Member (T) For the Appellant : Dr S Chakarborty, Adv For the Respondent : A Kumar, AC (AR) ORDER Per Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee shipping bills to DBK shipping bills as per the provision of Sec 149 of the Customs Act 1962. That by virtue of the impugned order dt 1/11/2007 Commissioner rejected the claim of the appellant on the ground that it is beyond the ambit of Commissioner to allow conversion of free shipping bills to DBK S/B in view of CBEC Circular No. 04/2004-Cus dt 16/1/2004. 2.1 Learned Advocate made the bench go through Sec-149 of the Customs Act 1962 and argued that power to amend the document, including shipping bills, has been given under the statute. That this power can not be limited by CBEC Circular. He relied upon the following case laws in support of his arguments, (i). Kiran Pondy Chems Ltd Vs. CC, Chennai [2006 (203) ELT 580(Tri-Chennai) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3.2 4 of the order he rejected appellant's request as per CBEC Circular No. 04/2004-Cus dt 16/1/2004. 4.1 It is observed that the same issue came before CESTAT Mumbai in the case of Man Industries (India) Ltd Vs. CC (EP) Mumbai (Supra) where following observations were made while allowing the appeal;- 1.6 Instructions in way of Board Circular No. 4/2004-Cus. Dated 16-1-2004 regarding conversion of Shipping Bills from one export promotion scheme to another export promotion scheme were issued. Request of the exporter was examined in view of Board Circular No. 4/2004-Cus., dated 16-1-2004 and the same was rejected as pre condition of the referred circular is that the conversion of Shipping Bill from one export promotion scheme t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and consequently Commissioner ought to have allowed the request for conversion instead of bound by the terms of a Board circular which laid down certain situations, only in which conversion was permitted. That the appellants' case was not specifically covered by one of the situations contemplated in the Board's circular cannot deny the appellants statutory right, to seek any amendment same is lost. The statutory right as also the statutory obligation of the proper officer to amend a document after its presentation in the Custom House cannot be curtailed or set to naught by circulars of the Board. The approach adopted by the Respondent has the effect of inferring from conferring upon the Board Circular, a status of a statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nversion of the Shipping Bills was based on documentary evidences in from of Chartered Engineers, Range Superintendent of Central Excise certificates, arrived at on documents and material anterior to export i.e. which were in existence at the time of export of the goods, as is the requirement in the proviso to Section 149. 4.2 Against the above order Revenue filed appeal in Bombay High Court which was dismissed [2007 (216) ELT 15 (Bom.)] and further appeal to Apex Court was also dismissed [2015 (326) ELT A34 (S.C.)]. 4.3 Relying upon the ratio of Man Industries (India) Ltd Vs. CC (EP) case CESTAT Mumbai in the case of Metallic Bellows (I) Pvt Ltd Vs CC (Exports) Nhava Shera (Supra) also remanded the case back to the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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