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TMI Blog2017 (3) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... aside - lower authorities are directed to convert the drawback shipping bills to DFIA shipping bills. Appeal allowed - decided in favor of appellant. - C/87134/16, C/CO-91152/16 - A/86189-86190/17/CB - Dated:- 6-2-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Atul Nanda, Advocate with Shri Anil Balani, Advocate for appellant Shri Ahibaran, Addl. Commr (AR) for respondent ORDER Per M. V. Ravindran This appeal is directed against order-in-original No. 27/2016-17/CC/NS-II/JNCH dated 22.08.2016. 2. The relevant facts that arise for consideration are appellant herein had exported goods during the period 07.10.2014 to 26.06.2015 and filed shipping bills claiming duty draw back for the exports. The claim for the said duty draw back against the shipping bills were not sanctioned but were suspended for various reasons. Since there was a delay in sanctioning the duty drawback, appellant by a letter dated 05.07.2016 requested the Asst. Commissioner of Customs (DBK) for conversion of duty drawback shipping bill into DFIA scheme shipping bill. The Asst. Commissioner (Drawback) vide letter dated 07.07.2016 informed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply etc. which would mean that appellant has not received any draw back from Govt. of India; there is no time limit fixed either under para 2.56 of the Hand Book of Procedures or in Section 149 of the Customs Act, 1962 for amendment in the shipping bills is the submission of the learned Sr. Advocate after taking us through the provisions. 3.1 It is his further submission that the proviso to Section 149 of the Customs Act, 1962 does not prescribe any time limit for conversion and if the documentary evidence available at the time of export is produced and therefore such conversion ought to have been allowed by the department. For this proposition he relied upon the decision of the Tribunal in the case of V.R.A. Cotton Mills Pvt. Ltd. 2014 (309) ELT 100 (Tri. Ahd) and having not sanctioned the draw back claim, denial of conversion of shipping bill is also incorrect, as the ratio of the decision of the Tribunal in the case of Fontansey Engg. Export Pvt. Ltd. 2008 (232) ELT 100 and also the judgement of the Tribunal in the case of JSW Ltd. 2006 (199) ELT 445 (T) for the proposition that the shipping bills provisionally assessed under DEPB scheme and subsequent conversion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs authorities, after recording reasons in writing permit conversion of an EP copy of any scheme shipping bill on which the benefit of that scheme has not been availed, exporter would be entitled to benefit under scheme to which shipment is subsequently converted. 5.3 It can be seen that this stipulation clearly permits the conversion from one scheme to another on presentation of export promotion copy of any shipping bills for conversion if the benefit has not been availed. In the case in hand duty draw back benefit of shipping bill has not been granted till to-day, accordingly, the appellant has sought conversion of shipping bills. It is to be noted that para 3 of the Board's Circular 36/2010-Cus dated 23.09.2010 permit the Commissioner of Customs to allow the conversion of shipping bill from export promotion scheme to another schemes on case to case basis depending on the merits of the case. 5.3 It is not the case of the department that duty draw back or DFIA is not export promotion scheme. 5.4 The adjudicating authority has recorded findings that since the duty drawback claim of the exporter are under process and is not denial of draw back, but kept under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts made on the shipping bill/export documents prove the fact of export clearly covered under relevant SION and DEPB Schedule, and exporter fulfilling all conditions of Scheme - No finding by Commissioner on entitlement of appellants to conversion on the basis of above circulars and Tribunal's decisions by which exporter not required to prove that he was forced to file free Shipping Bill by Customs - Matter remanded for re-adjudication. In the case of Sanghi Industries Ltd. (supra) the Tribunal held as under : Shipping Bill - Conversion of free shipping bill to DFRC shipping bill -Input viz. Coal, Magnesite, refractory bricks and furnace oil mentioned in SION at Serial No. 1030 - Fact of export of clinker also established - Mundra port being a notified Port - Conversion of free slapping bill into DFRC shipping bill allowed in respect of goods exported through Mundra Port - However, conversion to DFRC Shipping bill not allowed in respect of exports through Jakhao Port, this port not being a notified port at the relevant time - Board's Circular No. 40/2003-Cus., dated 12-5-2003 and No. 6/2003-Cus., dated 28-1-2003. In the case of Smruti Pottery Works (supra) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner is not an order since it is a letter communicating the decision of the Commissioner regarding conversion of shipping bills and as such cannot be appealed to the Tribunal. However, I find that the Division Bench in the case of Jindal Stainless Limited v. Commissioner of Customs (Exports), Chennai - 2005 (183) E.L.T. 157 (Tri. - Chennai) has held as under : 6. The Commissioner penned that the conditions stipulated in pare 3.2 of the above Circular were not fulfilled by the exporter, and he declined their request. We extract the following from para 3.2 of the Circular : ..As regards permitting conversion of shipping Bills from one export promotion scheme to another is concerned, it is clarified that such conversion should only be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by DGFT/MOC or custom due to any dispute. Such conversion may be permitted on merits by the Commissioner on case to case basis subject to the following conditions :- (a) The request for conversion is made by the exporter within one month of the denial/rejection of the benefit claimed. (b) On the basis of available export documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unrebutted. Therefore, we have to hold that the appellants fulfilled all the above conditions for conversion of the Shipping Bills from Zero duty EPCG to EPCG and DEPB (post export) The Revenue has no case that, once this change of Scheme entry in SB is made, the exporter will still be ineligible for DEPB benefit. Therefore, the EP copies of the subject Shipping Bills should be allowed to be amended so that the appellants can claim DEPB benefit before the JDGFT. It can be noted from the above reproduced portion of the order of the Tribunal, that even notings of the Commissioner scribble on margins of party's letter is appealable under Section 129A(1)(a) of Customs Act, 1962. Hence even this contention raised by the ld. SDR does not hold good. 8. Accordingly, the impugned order rejecting the request of the appellant to convert the 16 drawback shipping bills, is liable to be set aside and I do so. The lower authorities are directed to convert the draw back shipping bills to DEEC shipping bills. Appeal is disposed off as ordered hereinabove. 5.6 We find strong force in the contentions raised by learned Counsel for the appellant that Hon'ble High Court of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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