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TMI Blog2022 (2) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... application to deny the request for conversion of shipping bills. The second ground for rejecting the request for conversion of free shipping bills is that the goods exported have not been subjected to physical examination. As can be seen from Section 149, which has been noticed above, there is no requirement in the said section that the amendment can be allowed only if the goods have been subjected to physical examination before export - On perusal of the impugned shipping bills, it is seen that the appellants have clearly stated in the shipping bills that the goods are exported under advance authorization scheme. On one shipping bill, there is a mistake in noting the license number of the advance authorization. In both the shipping bills, the scheme code was wrongly mentioned though they have stated that the goods are exported under advance authorization. The code has been noted as 00 instead of 01 . Section 149 is a provision which permits the importer / exporter to request for amendment of documents for the mistakes that may have happened while filing the documents. When an application for amendment is received, if it is very much clear from the documents that the mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode as 00 pertaining to free shipping bill instead of 01 which is the code for scheme shipping bill. Further, they had also wrongly mentioned the advance authorization license No. as 0310820320 dated 9.4.2018 instead of 0310820746 dated 2.5.2018. 4. Immediately on realizing the mistake, the appellant requested for amendment of the shipping bills vide their letter dated 19.8.2020. The adjudicating authority rejected the request on the ground of time limit as well as on the merits relying upon the Board Circular No. 36/2010 dated 23.9.2010. 5. The learned counsel adverted to section 149 of the Customs Act, 1962 to argue that the said provision does not stipulate any time period to seek amendment of a shipping bill. The time period of three months provided in the Circular issued by the Board cannot prevail over the statute. To support this argument, he relied upon the recent decision of the Hon'ble High Court of Kerala in the case of Parayil Food Products Pvt. Ltd. 2010 (10) TMI 1141 KERALA High Court and the decision of the Tribunal in the case of Contemporary Leather Pvt. Ltd. 2021 (12) TMI 293 CESTAT Chennai. 6. The learned counsel submitted that the second gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jhajharia appeared on behalf of the department and supported the findings in the impugned order. He adverted to the discussion and findings in para 6 of the impugned order. As per the Board circular No. 36/2010 (supra) the request for conversion has to be filed within three months. In the present case, the appellant has filed the request with a delay of more than three months from the LET export order and therefore the adjudicating authority has correctly rejected the request for amendment. Further, para 3(b) of the Circular states that the goods have to be verified by physical verification so as to ensure that the conditions of the scheme have been compiled. In the present case, as the physical examination had not taken place, the Commissioner has rightly rejected the request for conversion. He prayed that the appeal may be dismissed. 9. Heard both sides. 10. The issue is with regard to the rejection of the request for conversion of free shipping bills to advance authorization scheme shipping bills. Section 149 of the Customs Act, 1962 which deals with conversion / amendment of the shipping bills is as under:- Section 149. Amendment of documents. - Save as otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (for example, from Advance Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB scheme or vice versa) irrespective of whether the benefit of an export promotion scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not. The conversion may be permitted in accordance with the provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on the basis of documentary evidence which was in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by the DGFT/MOC. The conversion may be allowed subject to the following further conditions: a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO). b) On the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling an application for conversion of a shipping bill, the department cannot rely upon a circular to frustrate the provisions contained in the statute. When there is a conflict, the statute will definitely prevail over the Board circular. The issue whether the time limit prescribed as per the Board circular will apply was considered by this Tribunal in the case of Autotech Industries (India) Pvt. Ltd. reported in 2021 (11) TMI 518 CESTAT Chennai and held that time limit of three months prescribed in the above Board circular cannot be applied to reject the request of conversion / amendment of shipping bills. The Tribunal in the case of Contemporary Leather Pvt. Ltd. Vs. CC, Chennai reported in 2021 (12) TMI 393 CESTAT Chennai followed the decision of the Hon'ble jurisdictional High Court to hold that the Board circular cannot be pressed into application to deny the request for conversion of shipping bills. 13. The Hon'ble High Court of Kerala in the case of Parayil Food Products Pvt. Ltd. Vs. Union of India reported in 2020 (10) TMI 1141 Kerala High Court had considered the very same issue and held that when section 149 does not prescribe any time limit, the request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been subjected to physical examination. As can be seen from Section 149, which has been noticed above, there is no requirement in the said section that the amendment can be allowed only if the goods have been subjected to physical examination before export. On perusal of the impugned shipping bills, it is seen that the appellants have clearly stated in the shipping bills that the goods are exported under advance authorization scheme. On one shipping bill, there is a mistake in noting the license number of the advance authorization. In both the shipping bills, the scheme code was wrongly mentioned though they have stated that the goods are exported under advance authorization. The code has been noted as 00 instead of 01 . 15. Section 149 is a provision which permits the importer / exporter to request for amendment of documents for the mistakes that may have happened while filing the documents. When an application for amendment is received, if it is very much clear from the documents that the mistake was only an inadvertent mistake and there is no attempt of fraud or mis-statement to evade duty, the request for conversion ought to be allowed. 16. The Tribunal in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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