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TMI Blog2022 (7) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... g with interest. This approach of the appellant, is as good as non availment of any Export Promotion Scheme. It is undisputed fact that the appellant though claimed the DBK in Shipping Bill but before receiving the amount of DBK informed the department that they do not want the credit of DBK amount - As per Section 149 it is clear that the amendment of export promotion scheme under the shipping bill can be permitted even if the goods have been exported only on the condition that the documentary evidence on the basis of which the amendment is claimed was in existence at the time when goods were exported. In the present case the goods were exported vide Shipping Bill No 3055417 dated 23.02.2018 whereas Advance Authorization (DEEC) No. 0810139972/2/03/00 is of dated 30.03.2017. Therefore, there is no doubt that the DEEC licence on the basis of which amendment is being sought by the appellant was very much in existence at the time of export. In this undisputed fact the condition of Section 149 of the Customs Act for the purpose of amendment in shipping bill stands satisfied - it is almost settled that when the condition prescribed under Section 149 is satisfied the conversion sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20/2018 dated 09.03.2018 the said drawback amount was not received in their bank account till then. Hence, they requested the customs officials to instruct the Bank for stopping payment of said drawback in their Bank Account. The Appellant requested to allow them Post Shipment amendment under Section 149 of Customs Act, 1962 in Shipping Bill No. 3055471 dated 23.02.2018 from Export Promotion Duty Drawback Scheme to Advance License Scheme. The Appellant in their aforesaid letter also intimated customs to stop payment of Drawback of Rs. 1,71,519/- and also confirmed that they were liable to reverse the Duty Drawback of Rs 1,71,519/- if the same is remitted to their Bank Account. The Appellant vide their letter dated 09.08.2018 also accepted that they will pay Drawback amount of INR 1,71,519 along with interest to customs, in case if the same is credited to their Bank Account. The Appellant vide above letter dated 09.08.2048 again requested the Custom Officials to allow them to change Shipping Bill scheme from Drawback to DEEC in Advance Authorization Number 0810139972/2/03/00 dated 30.03.2017. The Office of the Deputy Commissioner of Customs, Hazira Port, Surat vide letter dated 16.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request of the appellant in the impugned order. He submits that the appellant had earlier claimed the Duty Drawback Scheme at the time of assessment of shipping bill. Thus, the amendment claimed was not an amendment simplicitor, but was for the purpose of changing the assessment order. He submits that the assessment order can be changed or modified only by the way of an appeal before Commissioner (Appeal). In the present case the appellant has not filed any appeal for changing the assessment of shipping bill hence, the appeal is liable to be rejected, moreover, for the reason that the appellant have already received the Duty Drawback. He placed reliance on the judgment of this Tribunal in the case of Tata Teleservices (M) Ltd Vs. CC 2019 (12)TMI- CESTAT MUMBAI. 4. We have carefully considered the submission made by both sides and perused the record. We find that the limited issues to be decided is that whether the appellant s request for conversion of Export Promotion Scheme from Duty Drawback to Advance License is legal and correct. We find that the Learned Principal Commissioner has rejected the claim of the appellant on the ground that the appellant had violated the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appellant had violated the Condition 3(e) of the Circular. On the careful reading of the said clause we find that the contention of the Principal Commissioner is incorrect in as much as though the appellant were granted the DBK but the appellant had already informed the department that they do not wish to get the DBK amount credited in their Bank account and if at all it is credited they offered to surrender same amount along with interest. This approach of the appellant, in our view as good as non availment of any Export Promotion Scheme. 4.1 It is undisputed fact that the appellant though claimed the DBK in Shipping Bill but before receiving the amount of DBK informed the department that they do not want the credit of DBK amount. The conversion of shipping bill was sought by the appellant in terms of Section 149 of Customs Act, 1962 which is reproduced below: Section 149: Amendment of documents . - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the custom house to be amended: Provided that no amendment of a bill of entry or a shipping bill or bill of export s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental Carbon Chemicals Ltd Vs. UOI 2021 (377) ELT - 850 (Guj.) CC Vs. Carl Zeiss India Pvt . Ltd 2021 (376) ELT 457- (Kar.) Gokul Overseas Vs. UOI 2020 (373) ELT 49 (Guj.) Kedia (Agencies) Pvt. Ltd Vs. CC- 2017 (348) ELT 634 (Del.) Commissioner Vs. Smruti Pottery Works 2015 (324) ELT A79 (SC) Commissioner Vs. Man Industries (I) Ltd 2015 (326) ELT A34 (SC) From the above judgments it is almost settled that when the condition prescribed under Section 149 is satisfied the conversion should be allowed. As regard the submission made by Learned AR that the appellant should have challenged the assessment by filing the appeal before the Commissioner (Appeals). We find that this is not a case of department, also there is a clear and independent provision under section 149 that without challenging the assessment an assessee can seek amendment under shipping bill even after assessment of export documents. Moreover, the learned principal commissioner has denied the conversion only on the ground that the appellant had violated condition prescribed under para 3 (e) of Circular no. 36/2010-Cus dated 23.09.2010 as already discussed above thus condition does not get ..... X X X X Extracts X X X X X X X X Extracts X X X X
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