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TMI Blog2022 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... he shipping bill. The exporter or importer has, as a corollary, the right to seek an amendment under section 149 but nothing in the section suggests that the importer or exporter has a right to an amendment. Otherwise, the words the officer may, in his discretion in Section 149 will be otiose. Needless to say that once an officer makes a decision, such a decision will be subject to judicial review. When discretion is given to an administrative or quasi-judicial authority, can he decide in any manner he pleases or is it subject to any restrictions? - HELD THAT:- The officers exercised discretion to NOT permit amendments for any reason other than the fact that the EGM was closed and therefore, the amendment cannot be done in the Customs EDI system. The other reasons argued by the learned Departmental Representative such as the Shipping Bill was subjected to less rigorous examination because it indicated that no benefits were being claimed in the column and that this amounts to changing the nature of the scheme under which the goods are exported are not mentioned in either the order-in-original or in the impugned order. Hence, these reasons cannot be accepted while deciding thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [ DGFT ] provides the incentive for exports under the Shipping Bills claiming benefit under the scheme which are transmitted electronically by the Customs. Since the appellant mentioned NO, the shipping bills were not transmitted and it had not received the incentive. 3. Much later, on 9.10.2016, the appellant submitted to the Customs a request to amend the Shipping Bills under Section 149 of the Customs Act changing the entry from NO to YES. It was the appellant s contention before the lower authorities as well as before us that their intent to avail the benefit of MEIS was evident in black and white on the face of every shipping bill, and therefore, it should not be denied the benefit simply because of the error in an entry. 4. Section 149 of the Customs Act reads as follows: Section 149. Amendment of 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 custom house to be amended [ Inserted (w.e.f. 1-8-2019) s. 80 of the Finance (No.2) Act, 2019 (23 of 2019) ] [in such form and manner, within such time, subject to such restrictions and conditions, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be denied to the appellant due to cross fire between two departments of the Central Government. 7. The prayer made in the appeal is as follows: (i) Set aside the impugned order and allow in full; (ii) Direct the authorities to allow amendment of 19 shipping bills in question to mark YES in place of NO in the column meant for Scheme Reward the shipping bills and thereafter transmit the data pertaining to the exports made by the appellant under these 19 shipping bills thereafter the customs EDI system to the DGFT; (iii) Grant a personal hearing; and (iv) Pass such other order as may be deemed fit and proper in the circumstances. 8. Learned Counsel relied on the following case laws: (i) Man Industries (India) Ltd. vs CC(EP), Mumbai - 2006 (202) ELT 433 (Tri.-Mumbai) , (ii) Parayil Food Products Pvt. Ltd. UoI, - 2021 (375)ELT 486(Ker.) (iii) Vision Distribution P. Ltd. vs. CSGST - 2020 (34) GSTL 90 (Del.) (iv) Vidyut Majdoor Kalyan Samiti vs. State of Uttar Pradesh - 2021 (49) GSTL 230 (ALL.) (v) CC, Cochin vs. Mangalath Cashew- 2020 (373) ELT 149(Ker.) (vi) CC, Cochin vs. N.C John and Sons Pvt. Ltd. - 2020 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment from NO to YES was made after a long period of 9 to 12 months from the date of shipping bills. He also pointed out the fact that all the shipping bills were cleared without physical examination. It is his assertion that the shipping bills get picked up for examination or otherwise by the risk management system of the Customs EDI depending upon the benefits claimed. In this case as the appellant declared that no benefit was being claimed that, the shipping bills were not picked up for examination. It is for this reason the shipping bills were also not transmitted online to the DGFT. Therefore, his submission is that this case is similar to this case of Terra Films Pvt. Ltd as the appellant is seeking to convert a shipping bill with no claim of MEIS into one with a claim of MEIS; (v) In the Case of Anil Sharma vs. Union of India [ 2017 (350) ELT 332(Guj) ] High Court of Gujarat has held against the appellant relying on the judgment of the High Court of Delhi in the case of Terra Films (supra) which was also followed by the High Court Madras in the case of Suzlon Energy Ltd; and (vi) He further submits that in the case of Commissioner of Customs (Export) vs. E.S Ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is discretion to not permit the amendment. He also emphasized that the Shipping Bills were all cleared without physical examination because the appellant indicated that no benefits were being claimed. According to him, the appellant has no right to get the shipping bills amended. 15. We find Section 149 states the officer may, in his discretion, permit amendments and it does not say the officer shall permit amendment. If the legislative intent was to make amendment a vested right, then there was no need for permission from anyone. Not only is the word used is May and not Shall , but it is followed by the words in his discretion . The only limitation on the discretion of the officer is the proviso which states that it shall not be permitted except on the basis of the documentary evidence before the export. Subject to this limitation, the officer, indeed, has the discretion which he can exercise and permit or not permit amendments to the shipping bill. The exporter or importer has, as a corollary, the right to seek an amendment under section 149 but nothing in the section suggests that the importer or exporter has a right to an amendment. Otherwise, the words the officer ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, courts might well say, Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires . per Lord Russel of Killowen, C.J. in Kruse v. Johnson. 51. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness . See Associated Provincial Picture Houses Ltd. v. Wednes-bury Corporation, [1948] 1 K.B. 223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western ' Railway[ 1905 AC 426, 430: 93 LT 143 ],: ..... It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority commit- ted to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first..... . In The Barium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to changing the nature of the scheme under which the goods are exported are not mentioned in either the order-in-original or in the impugned order. Hence, these reasons cannot be accepted while deciding this appeal. 18. The next question is whether the reason given for not permitting amendment of the Shipping Bill can be sustained. Learned Counsel submits that the software should have been designed so as to enable the amendment of the Shipping Bill even after the EGM has been closed so that the appellant s request for amendment under Section 149 could be considered. 19. We agree with the learned counsel inasmuch as the software should not make the amendment under section 149 impossible if such as amendment is legally permissible. Equally true is that section 149 does not confer any right on the importer or exporter to get the Customs EDI software modified or altered. Therefore, if the software does not permit the amendment of the Shipping Bill in the system, it is unreasonable to ask the officer to do the impossible by amending it in the system. Instead, the amendments can be permitted manually. In the facts and circumstances of this case, we find that the appellant has ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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