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TMI Blog2022 (12) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... not be overturned for lack jurisdiction but can upon passing the test of conformity with either the principal enactment or the more rigourous in the proviso, as the case may be. From the nominal nature of the amendment sought without impacting any statutorily prescribed detail in the entry mandated by section 50 of Customs Act, 1962, the application does not fall within the sphere of the proviso that has been resorted to in the impugned order. The impugned order has been passed without issue of show cause notice. And yet, the proper officer did not hesitate to decide on the lack of wherewithal for ascertainment of value addition norms in the exports, of the raw materials and other inputs in the manufacture of the goods, of conformity of the utilized inputs with permissibility in the Standard Input Output Norms (SION) and, indeed, the classification of the exported goods within the said standard input output norms (SION) in the Foreign Trade Policy. The determination of ineligibility, for want of the goods physically, to operate under the duty free import authorization (DFIA) scheme in the Foreign Trade Policy (FTP) as ground to refuse the amendment traverses beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C471 of SION), cold rolled full hard/ cold rolled close annealed (CRCA) (without skin passed/temper passed) non-alloy/alloy steel (excluding stainless steel) sheets/hoop and strips/wide coils (43 nos said to be covered under sl no. C470) of SION) and cold rolled galvanized/galvannealed (plain/corrugated) non-alloy/alloy steel sheets/strips/wide coils (12 nos. said to be covered under sl no. C472 of SION). The enumerations under standard input output norms (SION) acquire significance as the appellant intends to seek the benefit afforded by zero duty export promotion capital goods cum duty free import authorization (EPCG cum DFIA) scheme instead of zero duty export promotion capital goods (EPCG) scheme in the Foreign Trade Policy (FTP) notified under Foreign Trade (Development Regulation) Act, 1992. The impugned order has disallowed the request as barred by limitation of time and also as the non-availability of goods for examination, prescribed differently for different schemes, precluded ascertainment of description and composition for conformity with corresponding entries in standard input output norms (SION) as well as adherence to value addition norms by which alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: .. in Customs Act, 1962, having undergone amendment by Finance Act, 2019 to transform as 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 customs house to be amended in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed. Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so 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: .. with effect from 1st August 2019, to empower prescriptions that, in public interest, may delineate contours in the exercise of discretion while disposing off requests for amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2010-Cus dated 23 rd September 2010 is but a pathway to the larger objectives of governance. It is moot, therefore, if the intent of the circular is to be perceived in its letter, as held by the proper officer , rather than in its spirit as claimed by the appellant. To deduce the propriety of either alternative, we turn to the legislative authority for such prescriptions as well as the chronological evolving of a uniform approach to guiding such facilitation. Circular no. 36/2010-Cus dated 23 rd September 2010 was preceded by circular no. 4/2004-Cus dated 16th January 2004 of Central Board of Excise Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. Consequently, the bar of limitation could be invoked only in the absence of any mitigating circumstances offered up in response to clarification sought by the proper officer from the appellant for an appropriate decision. We are unable to perceive any such considered resolution of the request preferred by the appellant to the Commissioner of Customs. making it abundantly clear that the invoking of any time bar, whatsoever, for rejection of such applications does not have the authority of law in the absence of such disbarment in section 149 of Customs Act, 1962 or by any prescription issued after 1st August 2019 under the authority of amended section 149 of Customs Act, 1962. 7. The contextual setting of the circular commonly referred to in the application for amendment and in the impugned refusal of permission had also been examined by the Tribunal in the decision supra to conclude that its intent was facilitative. In the present instances, amendment may well have the beneficial consequence of affording import of goods against, or transferability of, authorization issued under the appropriate scheme of the Foreign Trade Policy (FTP) upon grant by the compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was in existence at the time the goods were cleared, deposited or exported, as the case may be. in Customs Act, 1962, it is seen that amendments of documents can be facilitated at any time after their presentation in the custom house. The seemingly open-ended jurisdiction for amendment of documents is, nonetheless, constrained within the discretion vested in the proper officer to permit that. Clearly, it is not a right to have the amendments incorporated and the applicant is, therefore, obliged to justify the necessity, in terms of consequential detriment, for invoking the provision. Concomitantly, it devolves on the proper officer to place the applicant on notice of any want that may impede such permission or of any doubts that may be brought to bear on grant of the application and to further issue a reasoned order in the event of rejection. The deployment of the expression document and the appending of proviso is calculatedly significant. Though not one of the enumerations in section 2 of Customs Act, 1962, document is found scattered within several operative provisions, especially in the context of entries, as prescribed, and of assessment, connoting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment in circumstances that are outrightly not in conformity with the literal phraseology of section 149 of Customs Act, 1962 may not be overturned for lack jurisdiction but can upon passing the test of conformity with either the principal enactment or the more rigourous in the proviso, as the case may be. From the nominal nature of the amendment sought without impacting any statutorily prescribed detail in the entry mandated by section 50 of Customs Act, 1962, the application does not fall within the sphere of the proviso that has been resorted to in the impugned order. 10. That the said goods may find enumeration in the standard input output norms (SION) is also not disputed and it would appear that anticipated additional benefit of procurement of raw material for such manufacture from abroad by additional coverage of the duty free import authorization (DFIA) scheme subsequent to export has not sat well with the proper officer under section 149 of Customs Act, 1962 prompting nipping in the bud as it were. Such rejection, based on the consequential impact of proposed amendment owing to operability of other provisions of Customs Act, 1962 or any other law for the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated goods and furnishing of evidence of fulfillment of export obligation to the issuing authority for closure of the file concerned in the office of Directorate General of Foreign Trade; within this sequence, customs authorities are concerned with assessment of shipping bills relating to stipulated goods under section 51 of Customs Act, 1962 and, while undertaking statutory mandate of section 47 of Customs Act, 1962, with adherence of imports effected against bills of entry with the enumeration in the instrument issued by the authority under Foreign Trade (Development Regulation) Act, 1992. As far as post-exportation variant of the scheme is concerned, it is for the authority under Foreign Trade (Development Regulation) Act, 1992 to take a call on eligibility for the instrument specified in the Foreign Trade Policy (FTP); any which way, the jurisdictional oversight of customs authorities will not surface until the benefit of corresponding notification, issued under section 25 of Customs Act, 1962, is sought and that, as yet, was only a gleam in the eye of the applicant herein. We also find that there is no controverting of the submission of Learned Counsel for appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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