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TMI Blog2021 (11) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the goods have been removed from the factory for export after it has been examined / verified by the Superintendent of Central Excise - the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable. Time Limitation - HELD THAT:- It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the learned counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that section 149 of Customs Act, 1962 does not prescribe any time limit - The jurisdictional High Court in the case of M M/S. HEWLETT PACKARD ENTERPRISE INDIA PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF CUSTOMS, DEPUTY COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF RE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping bills. Show Cause Notice dated 20.2.2019 was issued proposing to reject the request for conversion of Shipping Bills on the ground that the request for conversion / amendment of Shipping Bills pertaining to exports made during the period 2000 to 2014 is barred by limitation as provided in CBEC Circular No. 36/2010-Cus. dated 23.9.2010. After due process of law, the original authority vide order impugned herein, rejected the request on the grounds; that the reason put forth by the appellant for omission to file drawback shipping bill at the time of exports is not satisfactory, the request is barred by limitation as per Board Circular and that the documents which were in existence at the time of exports are not available. 3. The learned counsel Ms. A. Aruna appeared and argued for the appellant. The grounds put forward in the appeal as well as the submissions made at the time of arguments are summarized as under:- (a) The discussion given in the impugned order for arriving at the aforesaid grounds of rejection are as below:- (i) The appellant requested for conversion of unspecified number of shipping bills for the years from 2000 to 2011. (ii) The appellant has not fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the shipping bills to the office of the respondent. (d) The appellant had also submitted sample copies of ARE1 and would have submitted the remaining ARE-1 if the respondent office had directed the appellant to produce them. In the SCN or during the personal hearing, the appellant was not put to notice that the documents produced are insufficient to consider the request for amendment. Had the appellant been informed at any point of time, before passing the impugned order, they could have furnished the documents once again. Rule 12(1)(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, reads as under:- "Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods - (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate or rates and make a declaration on the relevant shipping bill or bill of export that - (i) a claim for drawback under these rules is being made; (ii) in respect of duties of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at too when the assessee is otherwise eligible for the benefit and has fulfilled all other conditions. In the subject case, the appellant had paid duty on the inputs. They used duty suffered inputs and raw materials in the manufacture of export goods and the goods were subjected to examination and scrutiny of jurisdictional Central Excise authority as established by the document in the nature of ARE1s. (i) The appellant had requested to amend the shipping bills under section 149 of the Customs Act, 1962. The said provision of law allows amendment of any customs document, even after clearance of goods from customs, and the only condition provided therein is that the documentary evidence, based on which amendment sought, should have been in existence at the time of export / import. Further, proviso to Rule 12(1) of Drawback Rules, 1995 also allows conversion of Free Shipping Bills and no time limit is prescribed in this Rule also. (j) The shipping bills indicate the description, quantity, value and other particulars of the goods exported. The goods were allowed for export after due verification of such description. Hence, when goods were allowed to be exported, it is to be presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. Vs. CC - 2007 (216) ELT 67 (Tri. Chen.), wherein it was held that 'the circular of the Board No.4/2004 does not mention any statutory bar for denying the conversion claimed by the exporters. By denying export incentives granted by the Government through various schemes, the objective to promote exports will be defeated''. She prayed that the appeal may be allowed. 7. The learned AR Shri S. Balakumar appeared for the department. He supported the findings in the impugned order. It is argued by him that the period involved is from 2000 to December 2014. There is much delay in filing the request for conversion of the free shipping bill into duty drawback shipping bill. The appellant vide letter dated 9.10.2015 furnished details of FOB value as ₹ 77,41,61,176.40 and drawback amount of ₹ 1,40,90,563.85 for the period from January 2012 to December 2014 and furnished list of Shipping Bills for the corresponding period from January 2012 to December 2014. Thereafter, the appellant vide letter dated 25.1.2016 furnished revised FOB value as ₹ 4,30,20,50,859.59 and drawback amount of ₹ 8,11,20,455.25 and thereby including the Shipping Bills from the year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995." 9. That as per Rule 12(1)(a) of the Drawback Rules, 1995 declaration has to be made at the time of exports, as to whether goods are eligible for drawback. Such declaration has not been made by appellant and the Shipping Bills were filed as Free Shipping Bills. The reason put forward by the appellant for failure to file declaration is not befitting and not beyond control. Rule 12(1)of Drawback Rules,1995 reads as under:- "Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods - (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback shipping bills is legal and proper. 13. The appellant has made request for conversion of the shipping bills vide two letters as mentioned above. In the letter dated 25.1.2016, it is explained by them that drawback has been inadvertently not claimed by them while filing the shipping bills. In para 3 of the reply to the Show Cause Notice the reason for omitting to claim drawback by filing drawback shipping bills is explained by the appellant as under:- "The noticee have been exporting goods from 1998 onwards. During 2014 - 15, they faced difficulties in competing in the international market due to escalation in cost of production and competition. In order to reduce the cost of production, so as to complete in the international market, they hired auditors to conduct audit for the said purpose. From such audit only they came to know that they have been exporting taxes also in addition to exporting the goods which otherwise, could have been got back as duty drawback. As per drawback sub-serial No. 8409, subject goods are eligible for 2% drawback." 14. On realizing the mistake / omission, the appellants vide their letters dated 9.10.2015 and 25.1.2016, requested the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,08,81,484.78 17,56,341.00 19. October 2013 to December 2013 8,80,73,595.68 15,00,140.00 20. January 2014 to March 2014 7,45,32,856.45 10,75,200.85 21. April 2014 to June 2014 8,52,79,400.78 14,51,424.00 22. July 2014 to September 2014 9,39,08,202.03 15,96,443.00 23. October 2014 to December 2014 5,29,61,530.50 9,40,536.00 4,302,050,859.59 81,120,455.25 16. It is stated in these letters that they have produced the necessary documents in the nature of Shipping Bill, ARE-I, BRC etc. In the impugned order one of the reasons for rejecting the request is that the documents at the time of exports are not available. However, there is no such allegation raised in the Show Cause Notice which was issued on the basis of these letters. In the Show Cause Notice, the only ground raised is that the request for conversion is time barred. 17. The only requirement under Sec. 149 to allow amendment is that the exporter has to produce documentary evidence which was in existence at the time of export. The department does not specifically dispute the export of goods. The appellants have furnished copies of Shipping Bills, BRC and ARE-1. These documents are sufficient to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment of a bill of entry or shipping bill or bill of export shall be so authorised 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". 21. It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, as already discussed, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported. 22. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the learned counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that section 149 of Customs Act, 1962 does not prescribe any time limit. 23. The jurisdictional High Court in the case of M/s. Hewlett Packard Enterprises Vs. Joint Commissioner of Customs - 2021 (375) ELT 488 obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents or a confirmation as to whether such documents were actually 'in existence' is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being 'in existence' at the relevant time to evidence an error sought to be amended. 14. In the light of the discussion as aforesaid, the rejection of the request for amendment by the respondent is set aside to be re-done de novo. This writ petition is allowed." 24. The Hon'ble jurisdictional High Court in the case of Global Calcium Pvt. Ltd. Vs. Commissioner of Customs, Chennai vide judgment dated 29.6.2017 in CMA No. 875 of 2017 observed as under:- 1. After some arguments, Mr. Derrick Sam, seeks to withdraw the captioned appeal. Learned counsel, however, says that he has only one apprehension, which is, that the Adjudicating Authority may subject the claim for duty drawback to the time limit of three months provided in the Circular No.36/2010-Cus., dated 23.09.2010 (in short, "2010 Circular"). 2. According to us, this apprehension is misplaced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Ltd. Vs. Assistant Commissioner - 2019 (365) ELT 56 (Mad.). The relevant paras read as under:- "17. The Learned Counsel for the petitioners submits that the mistake in adopting the correct classification for the purpose of assessment can be rectified under Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962 a proper officer in his discretion may authorise any document to be presented. Section 149 of the Customs Act, 1962 reads as under :- "Amendment to Documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion authorise 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 or bill of export shall be so authorised 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." 18. In WP Nos. 18891 to 18893 of 2017, this High Court by its decision dated 25-7-2017 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be enforced if there is a long delay in asserting the right or the claim. 29. The duty drawback or drawback is a fundamental principle of international trade law and policy under which the duties, taxes and fees paid on imported inputs which are used for manufacture of goods and then exported are refunded. This is allowed in the nature of export promotion scheme and the intention is to eliminate the recovery of such costs (duty, taxes and fees) on the export goods in the international market. Chapter X of The Customs Act, 1962 provides for the law relating to drawback. Section 74 and 75 deals with two types of drawback. Section 74 of the Chapter speaks about drawback allowable on export of duty paid goods. Section 75 deals with drawback of imported materials used in the manufacture of goods which are exported which would be relevant for the case on hand. Sub-section (2) of this section lays down that Central Government may make rules for the purpose of carrying out the scheme of drawbacks. Section 75A speaks about interest. It states that when any drawback payable to a claimant under section 74 or 75 is not paid within a period of one month from the date of filing a claim for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short-paid. While raising a demand for recovery of such duty the period is limited to two years. Prior to 14.5.2016, this period was one year. In case of fraud, collusion or suppression of facts, the said period for which the duty can be demanded and recovered is extended to five years. When the time limit is specifically prescribed, the same would apply and one need not take recourse to the Limitation Act. 35. In the absence of any period of limitation prescribed, it is generally understood that every authority has to exercise the powers within a reasonable period. Conversely, any right that has to be enforced is to be sought without unreasonable delay. If the right is not enforced within reasonable time the remedy would stand extinguished. No hard and fast rule can be laid down to determine what is reasonable time. It depends upon the facts and circumstances of each case. 36. In the case of Collector of Customs Vs. TVS Whirlpool - 1996 (86) ELT 144 (Tri.) the question that came up for consideration was that what would be the limitation period for raising a demand of interest when there is no time limit prescribed for demand / recovery of interest under Sec. 47 read with Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Ld. Counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article 14 of the Constitution, as it does not provide for any period of limitation for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 12, the officer may act arbitrarily in recovering the amount after lapse of long period of time. We find no substance in the submission. While it is true that Rule 12, does not prescribe any period within which recovery of any duty as contemplated by the Rule is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that when no limitation period is prescribed under the Act, the proceedings for recovery have to be initiated within a reasonable time. 38. Again, section 128 of the Customs Act, 1962 provides for filing of appeals before Commissioner (Appeals). This section bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days. The question as to whether delay beyond six months can be condoned by resorting to section 5 of the Limitation Act, 1963 was discussed by the Hon'ble High Court of Delhi in Delta Impex Vs. Commissioner of Customs - 2004 (173) ELT 449 (Del.). The relevant portion is as under:- "12. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. 13. The Court is required to examine the scheme of the special law, and the nature of the remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin a reasonable time. We have already expressed our view that there is inordinate delay in filing the application for amendment under section 149 of the Customs Act, 1962. We then have to consider what would be the reasonable period for entertaining an application under section 149 of the Customs. 41. The Customs Act, 1962 being a special law and a complete code in itself it would not be proper to pull in the limitation period under the Limitation Act, 1963 and make it applicable to section 149. More so, because section 149 does not deal with any recovery of duty or refund of duty. It is a section merely to permit amendment in documents. Amendment is purely a procedural requirement. The legislature in its wisdom has not prescribed either in the Act or Rules a time limit to fulfill this procedural requirement. The consequence of such amendment as already stated, is to claim refund of duty suffered on inputs in the nature of drawback. The Limitation Act limits the period for filing a suit for recovery of money to three years. As per Article 137 of the Schedule to The Limitation Act, 1963 any application for which no period of limitation is provided elsewhere is three years from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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