9911796707
TMI Blog2017 (8) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, when the request is for conversion of free shipping bills into DEPB or for conversion of shipping bills from one export scheme to another. In the present case are that the appellant had applied for conversion of free shipping bills into DEPB Shipping Bills four to five years after export i.e. on 1.12.2003. Also, at the time of clearance of the goods it was specifically not disclosed in the free shipping bills nor in the ARE-1 export document by declaring thereunder specifically their intention to claim any of the export benefit i.e. benefit under DEPB scheme, therefore, the consignment was not opened for physical examination by the Customs and the export was allowed. Hence, it is difficult to appreciate the argument of the appellant that it was a question of mere amendment to the shipping bills, which is contrary to the Circular No.4/2004 dated 16.1.2004 issued by the Board and was in force during the relevant time. The request for conversion of free shipping bills to DEPB Scheme cannot be considered, as the said scheme is strictly on actual user basis exemption and no transferability is allowed pre or post export. Hence, strict interpretation need to be applied - appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of time, i.e., more than one year after the export of goods, the exporter filed application in January 2006 requesting for amendment of the said shipping bills. The ground given by the exporter for such request was that there had been a mistake in the documentation as they being new exporter were not aware of the procedure. In fact, similar submission was made before us also for the exporter. The guidelines/instructions which were contained in the Board s Circular No. 4/2004 dated 16th January, 2004 being applicable at the relevant time were applied and the request for amendment was rejected by the Commissioner. The Board s circular dated 16th January, 2004 envisages as under : As regards permitting conversion of free shipping bills in (A) to Advance Licence/DEPB/DFRC shipping bills is concerned, it is true over a period of time, with liberalization having been ushered in the Customs administration, clearance of goods is being permitted mostly on the basis of self-declaration made by the exporters on the shipping bills. Such self-assessment scheme necessarily casts the responsibility on the exporters to make up his mind at the time of filing shipping bills as to which expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinarily in routine. It was primarily for the reason that such conversion at a later date created difficulties. There is no dispute with regard to submissions as made by the learned counsel for the exporter/appellant that the circular could not override the scope of the Section 149 of the Act and cannot be generalised in every case of amendment of shipping bills. By submitting these arguments, the learned counsel tried to emphasise that the request of exporter for conversion of the shipping bills from one scheme to another was that of amendment under Section 149 of the Act and not only confined to conversion within the scope of the aforesaid circular. In fact, the matter was remanded by the CESTAT to the Commissioner on such submission made by the exporter before the CESTAT. Section 149 of the Act under which the exporter submits the amendment to be permissible reads as under : Amendment Section 149. of documents - Save as otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document after it has been presented in the customs house to be amended. Provided that no amendment of a bill of entry or a shipping bill of export shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at by the Commissioner has been rightly upheld by the CESTAT. 5. In similar circumstances, the Hon ble Madras High Court in Areva T D India Ltd. (supra) considering the scope of Section 149 of the Customs Act when a request for conversion of duty free shipping bills into DEPB shipping bills after a considerable delay in making such request observed as follows: 16. The provision regarding amendment of documents gives a clear indication that such amendments cannot be permitted as a matter of course. It is true that discretion is given to the authorities to permit amendment of documents after it has been presented in the customs house. However, no amendment can be made after the export, except on the basis of documentary evidence which was in existence at the time when the goods were exported. 17. There is a purpose in putting such onerous condition in the matter of amendment of documents after making exports. The conversion is not a matter of rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of any scheme, not only physical verification of documents would be required, but also verification of the goods of export and their examination by the Customs was necessarily required to be done. By observing so, the Delhi High Court upheld the rejection of the request of the exporter seeking for conversion of the Shipping Bill from one Scheme to another. 19. We are in full agreement with the reasonings given by the Delhi High Court in the above said case and by following the said decision [2011 (268) E.L.T. 443 (Del.)], we find that the 1st Respondent s claim seeking conversion is not maintainable and the same has been rightly rejected by the Commissioner of Customs. The Tribunal has not gone into any of these aspect in detail, even though it happens to be a final fact finding authority. It has simply allowed the conversion by resorting to the provision under Section 149 of Customs Act as if, it is a simple request for amendment. Therefore, we find that the order passed by the Tribunal cannot be sustained and accordingly, the same is set aside and the appeal filed by the Department is allowed. The questions of law raised in the appeal are answered in favour of the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
