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TMI Blog2020 (4) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... which documents were required to be produced. The Commissioner (Appeals) completely failed to distinguish the requirements of paragraph 2 of the notification and paragraph 3 of the notification. The documents which the Commissioner (Appeals) sought from the Appellant are in relation to the requirements of paragraph 3 of the notification and in fact even the information sought in the format is a format contemplated in paragraph 3 of the notification. Paragraph 2 of the notification required a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the notification. The appellant had not indicated the said declaration and it is this declaration that was sought to be submitted in the shipping bills through the amendment sought by the Appellant. Neither the Adjudicating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. It is, therefore, clear from the nature of the amendment that was sought by the Appellant in the Bills of entry and also from the provisions of section 149 of the Customs Act and the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 3 July, 2017 passed by the Assistant Commissioner rejecting the request of the Appellant is reproduced below:- 2. The Exporter although has submitted copies of impugned manual Shipping Bills (EDI Module was not in existence at that time), Relevant Invoices, Airway bills, Bank Realization Certificates, as per the provision of Section 149 of the Customs Act, 1962, post export amendment in Shipping Bill is allowed only on the basis of documentary evidences which were in existence at the time of export. But, no evidence in any of the submitted documents, which were in existence at the time of export was found to support the Exporter s claim of amendment for endorsing Service Tax Rebate on the said Shipping Bills, neither these documents reveal that the Exporter actually had the intention of claiming STR. xxxxxxxxxxxxx 5. On going through the facts and circumstances of the case, I find that since introduction of self-assessment regulations 2011, it is the duty of the assessee (in present case the exporter) to make correct and proper declaration about the goods intended to be exported and as to the benefits one wants to avail in respect of export of the goods. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification have to be fulfilled. 5.7 In the application dated 14.3.2017, the appellant exporter has not produced any such documentary evidence of receipt, use of services and tax paid on services, used in export of goods. Thus the basic requirement seems not to be fulfilled at the threshold. Besides, there is no declaration in the Shipping Bill about availing option of rebate of Service Tax as a % of FOB value of goods. The word used SHALL make it mandatory for the declaration to be made. The appellant exporter has not made such declaration while filing Shipping Bills. Shipping Bills pertain to period 1st April 2013 to 31st March, 2015. The impugned Notification was issued on 29th June, 2012. That means, the Notification was clearly in existence and it is presumed to be in the knowledge of the exporter. By not making such declaration, the exporter has not complied with the mandatory requirement of availing option of Service Tax Rebate as per Para 2 of Notification. 5.8 A plain reading of Section 149 makes it clear that it gives power to the proper officer to amend a document whereas Section 154 provides for correction of clerical or arithmetical mistakes by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order dated 19 June, 2019 passed by the Commissioner (Appeals), that has been assailed in this Appeal. 6. Shri Tarun Gulati, learned Senior Counsel appearing for the Appellant has submitted that the Appellant did not indicate in the shipping bills that rebate of service tax paid should be granted to the Appellant, though all the necessary information required to be submitted under paragraph 2 of the notification dated 29 June, 2012 had been submitted with the shipping bills at the time of export of goods and, therefore, the Appellant was justified in seeking amendment in the shipping bills in terms of section 149 of the Customs Act for incorporating that the Appellant was claiming refund of duty under paragraph 2 of the notification dated 29 June, 2012. In this connection, learned Senior Counsel pointed out that rebate could be granted by way of refund of service tax paid on the specified service either under paragraph 2 or under paragraph 3 of the notification and since the Appellant had not indicated this in the shipping bills, section 149 of the Customs Act permitted the Appellant to seek such amendment. In support of this contention, learned Senior Counsel placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification of the Government of India in the Ministry of Finance (Department of Revenue) number 52/2011 - Service Tax, dated the 30th December, 2011, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i) vide number G.S.R. 945(E), dated the 30th December, 2011, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby grants rebate of service tax paid(hereinafter referred to as rebate) on the taxable services which are received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods, subject to the extent and manner specified herein below, namely:- Provided that: (a) the rebate shall be granted by way of refund of service tax paid on the specified services . xxxxxx xxxxxx xxxxxx (b) the rebate shall be claimed either on the basis of rates specified in the Schedule of rates annexed to this notification (hereinafter referred to as the Schedule), as per the procedure specified in paragraph 2 or on the basis of documents, as per the procedure specified in paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be claimed on the service tax actually paid on any specified service on the basis of duly certified documents; (b) the person liable to pay service tax under section 68 of the said Act on the taxable service provided to the exporter for export of goods shall not be eligible to claim rebate under this notification; (c) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; (d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be,having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (e) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count number with the customs. The exporter has to make a declaration in the electronic shipping bill or bill of export, while presenting the same to the proper officer of customs. The service tax paid on the specified services eligible for rebate shall be calculated by applying the rate prescribed for goods of a class or description, in the Schedule, as a percentage of the FOB value of the said goods. 15. As the Appellant had not made any declaration in the shipping bills, an amendment was sought in terms of section 149 of the Customs Act that deals with amendment of documents. It provides that 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 shall be so authorized after the goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were exported. The Appellant had claimed amendment to make a declaration in the shipping bills that the Appellant was seeking rebate by way of refund of service tax paid on the specified services under paragraph 2 of the notification. 16. The Commissioner (Appeals) has rejected the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined. 18. The provisions of section 149 of the Customs Act relating to amendment of documents came up for interpretation before the Bombay High Court in Commissioner of Customs v/s. Man Industries (I) Ltd. 2007 (216) ELT 15 (Bom). The observations of the Bombay High Court are as follows: 3. We have also perused the order of the CESTAT, wherein it is clearly observed as under :- By application of this principle, it ought to be held that even if the Appellant s case did not fall within four corners of the Board s Circulars in question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts and circumstances of the case, particularly the undisputed position that the entire claim for conversion of the Shipping Bills was based on documentary evidences in form 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. 2.3 Since the entire claim of the 2.3. Appellant is establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption granted under category 2. The Supreme Court observed that in case the applicant is entitled to the benefit under two different heads, grant of exemption under category 2 and withdrawal of the said benefit cannot come in the way of the applicant claiming exemption under category 3 if the conditions laid down are fulfilled. The observations are as follows: 10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. So far as cancellation of exemption under category 2 is concerned, we are not called upon to decide legality or otherwise of the said decision as it has not been challenged before us in the present proceedings. The short question which we have to answer is whether the appellant could claim exemption under category 3 and non-consideration of the said application by the Deputy Director General (Medical) is in consonance with law. Our reply is in the negative. And we are supported in our view by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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