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TMI Blog2023 (8) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... his order for not allowing the conversion and it was held that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper. The impugned order cannot be agreed upon, which has been made without even hearing the appellant or without affording any opportunity of hearing to the appellant. Appellant should have been granted opportunity to establish that claim in terms of proviso to Section 149. The impugned order rejecting the request made is hit by the violation of principles of natural justice. The impugned order set aside - impugned order rejecting the request made is hit by the violation of principles of natural justice - matter remanded back to Commissioner for re-consideration of this request made under Section 149 after affording proper opportunity to the appellant for presenting their case. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Amit Awasthi, Advocate Shri Ashish Kumar Shukla, Advocate for the Appellant Shri Sandeep Pandey, Authorised Representative for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the respondent. 3.2 Arguing for the appellant learned Advocate submits that in terms ---- and no opportunity of personal hearing was afforded by the Commissioner to the appellant for explaining their case, and hence this order has been passed in violation of the principles of natural justice. the decision on this ground alone cannot be sustained. They are having all the documents required in terms of proviso to Section 149 for proving that the conversion can be allowed from free shipping bills to drawback shipping bills. on sample bill basis, he took us through some of the documents. 3.3 Learned Authorized Representative has reiterates the findings recorded in the impugned order. 4.1 We have considered the submissions alongwith the submissions made in the appeal and during the course of argument. 4.2 Rejecting the request made by the appellant for conversion of free shipping bills to drawback shipping bills, Commissioner has in the impugned order observed as follows: I observe that the party filed the application for conversion of Free Shipping Bills to Drawback Shipping Bills after the lapse of considerable time i.e. more than 03 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shipping bills was done consciously to avoid required under Rule 13 (1)(a) of the Customs and Central Excise Duties Drawback Rules, 2017 and it was not a matter of confusion owing to implementation of GST. Clearance of goods is permitted mostly on the abscess of self declaration made by the exporter on the shipping bills. Such self assessment scheme necessarily casts the responsibility on teh exporter to make up his mind at the time of filing shipping bills as to which promotion scheme he likes to avail. Section 149 of the Customs Act inter alia provides for amendment of shipping bills after export of goods only on the basis of documentary evidence which was in existence at the time when the goods were exported. The party have not given any reason beyond their control due to which they failed to comply with provisions of Rule 13 (1) (a) of Drawback Rules. Therefore, in the light of above discussions, I find that drawback on the basis of said free shipping bills cannot be allowed. 4.3 Section 149 of the Customs Act is reproduced as under:- Section 149. Amendment of documents. Save as otherwise provided in sections 30 and 41, the proper officer may, in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner to convert the Free Shipping Bills to Drawback Shipping Bill so as to sanction the drawback for the same. In the Annexure to the letter dated 9.10.2015, they have requested for conversion of Shipping Bills from the period January 2012 to December 2014. The details in the Annexure are as under:- Annexure Period INR FOB Value of Export INR DBK Amount 1. January 2012 to March 2012 3,75,95,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 2005 2006 Invoices 513,563,926.05 9,757,709.00 6. For 2006 2007 Invoices 335,911,765.83 6,382,316.00 7. For 2007 2008 Invoices 600,337,073.14 11,406,412.00 8. For 2008 2009 Invoices 342,435,776.37 6,506,279.00 9. For 2009 2010 Invoices 402,037,449.91 7,638,718.00 10. For 2010 2011 Invoices 458,249,510.96 8,706,737.00 11. For 2011 2012 (Upto Dec. 12) 253,438,788.39 4,815,328.00 12. January 2012 to March 2012 37,595,276.88 7,51,906.00 13. April 2012 to June 2012 4,68,16,310.85 9,36,320.00 14. Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory for export after it has been examined / verified by the Superintendent of Central Excise. The reverse side of ARE-1 inter alia reads as under:- Certified that I have opened and examined the packages No. 5/12 and found that the particulars stated and the description of goods given overleaf and the packing list (if any) are correct and that all the packages have been stuffed in the container No. NIL with marks and the same has been sealed with Central Excise Seal Lead Seal. 18. The above document would establish the description, quantity of the goods exported. The Bank Realization Certificate (BRC) would prove that consideration for the export has been received. 19. The learned AR has argued that the documents are not available with the department and that it is usually stored only for five years. As per Sec. 149, the requirement is not that the documents should be available with the department. It merely states that the exporter has to furnish documentary evidence which were in existence at the time of exports. In the case of M/s. Hewlett Packard Enterprises which is referred by us later, this point was discussed in para 12 and 13 of the judgment. The con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporaneous documents to establish the export are supplied by assessee. In the said case, the writ petitioner imported goods during the period 24.7.2019 to 26.7.2019 by filing 17 bills of entry. The invoices contained an error while mentioning the unit price of the imported products which came to be perpetrated in the Bill of Entry as well. On realizing the error they approached the Customs authorities seeking amendment under section 149 of Act ibid. The amendment sought was rejected on the ground that the imported goods have already been cleared for home consumption. On 17.10.2019, the petitioner made a further request to which the officer vide communication dated 31.10.2019 referred to the judgment of Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata IV 2019 (368) ELT 216 and informed that petitioner could file refund for the excess customs duty paid. Yet another request was made on 21.11.2019 and documents in the nature of (i) Price list, (ii) Purchase order inter se the petitioner and its supplier s reflecting the correct unit price (iii) original invoices showing the error (iv) purchase order (v) remittance report on 3.1.2020 order was submitted. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision will not apply in this matter . 3. Needless to say, since, the Revenue has not come up by way of cross objection, they cannot raise any cavil about limitation of three months prescribed in the Circular. 4. We may also indicate that neither Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, the Act ) prescribes, any time limit for processing the claim of duty drawback. 4.1. Furthermore, Mr. Chopda, has not been able to show any other provision in the Act or, the Rules framed thereunder, which provide for a time limit for processing the claim lodged for duty drawback. 5. As indicated above, the Tribunal has not accepted the stand of the Revenue that the Assessee's claim can be subject to time limit, as provided in the 2010 Circular. 6. Accordingly, the appeal is dismissed as withdrawn. Resultantly, pending application shall stand closed. There shall, however, be no order as to costs . 25. In the above judgment, the Hon'ble High Court has referred to the Board Circular, Sec. 149 of Customs Act, 1962 and 12(1)(a) of Drawback Rules and opined that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 is that a person seeking relief cannot rely upon a documentary evidence, which came into existence after the goods were cleared, deposited or exported, as the case may be. xxx xxxx xxxx xxxx 26. With these observation, the above writ petitions are partly allowed with a direction to the 1st respondent or any other officer authorised under the Act : (i) to pass a speaking order in respect of assessment made in the 23 and 9 bills of entries of the respective petitioner under Section 17 read with proviso to Sections 149 and 154 of the Customs Act, 1962 within a period of six month from the date of this order after giving adequate opportunity to the petitioners to establish the classification of imported wall fan under sub-heading 8414 51 90 following the principle [it] of natural justice. (ii) Refund any will be subject to the petitioner satisfying the test of unjust enrichment. 27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. The relevant para 3 and 4 of the Board Circular No. 36/2010 has already been reproduced in para 8 above. By this Circular, a period of three months is prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be eligible for interest at the rate fixed under section 27A of the Customs Act, 1962. 30. The Drawback Rules, 1995, as amended from time to time governs the procedure for claiming of drawback. Being an export promotion incentive, the procedure for claiming is also simple and hassle-free. The exporter is required to file a drawback shipping bill in the format as required under Rule 13 along with necessary declaration. The goods are examined by officers and a report made thereof. Copy of the drawback shipping bills which contains details of examination report is the claim copy for the drawback. The claim is then settled and passed by the officers of the customs department. 31. We are fully conscious that the issue in this appeal is not for claim of drawback but only request for amendment of shipping bills. In fact, as per sub-clause (a) of the first proviso to Section 129A (1) of the Customs Act, 1962, the Tribunal has no jurisdiction to entertain an appeal if the order relates to payment of drawback under Chapter X. The fleeting glance in the above paras on the nature and scheme of duty drawback is only to equip ourselves while considering the huge delay on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 as it then stood during the relevant time. No period of limitation was prescribed in these provisions for recovery of interest. The facts are such that, though the assessee had paid duty with interest the department was of the view that assessee was liable to pay further amount as interest for which notice of demand was issued. The Tribunal followed the judgment of Hon ble Apex Court in Govt. of India Vs. Citedal Fine Pharmaceuticals 1989 (42) ELT 515 (SC) which has been already captioned in the above decision. The relevant portion of the order is reproduced as under:- 4. We have considered the submissions made by both sides. We observe that no period of limitation has been prescribed under Section 61(3). A reasonable period of limitation will have to be read under this section as held by the Hon ble Supreme Court in the case of Government of India v. Citedal Fine Pharmaceuticals - 1989 (42) E.L.T. 515 (SC). This Tribunal in number of cases where the demands were raised under Rule 57-I at a time when no period was prescribed for recovery of Modvat credit has held that the reasonable period of limitation would in that case would be six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case. 5. This Tribunal in the context of the demands raised under Rule 57- I of the Central Excises and Salt Act, 1944 when no period of limitation was prescribed under the said rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 1962. Here also we observe under Section 28 of Customs Act, 1962 period of limitation prescribed for recovery of duty is six months or five years as above and also the period for claim of refund is also six months. The position being similar we hold that the same logic should apply in respect of the recovery to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the Legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further. 14. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided elsewhere is three years from the time when the right to apply accrues. We are unable to refrain ourselves from being not persuaded by these provisions in the Limitation Act to hold that a period of three years would be a reasonable time for filing an application under section 149. 42. The application dated 9.10.2015 contains request for amendment of Shipping Bills for the year 2012 to 2014. It gives details of shipping bills for three years (Jan. 2012 to Dec. 2014). The second application dated 25.1.2016 made by the appellant is only an afterthought by which appellant has included Shipping Bills from the year 2000 to 2011. We hold that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper. 4.5 Similarly in case of Carboline India Pvt. Ltd [2022 (381) E.L.T. 397 (Tri. - Chennai)] relying on the above decision, tribunal has held as follows: 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be. d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai 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 for conversion cannot be denied by application of the Board circular. The relevant para is reproduced as under:- 8. For the purpose of issuance of No Objection, provisions of Section 149 of the Customs Act, 1962 envisage the complete procedure for issuance of no objection certificate, i.e. for the purpose of amendment of a bill of entry or a shipping bill only after fulfilling certain conditions in the proviso. The same read thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case of Autotech Industries (India) Pvt. Ltd. (supra) had observed that the amendment is only a procedural issue. In the present case, the documents itself establish that these were inadvertent mistakes. 17. The Hon'ble High Court of Madras in the case of CC Vs. Diamond Engineering (Chennai) Pvt. Ltd. 2019 (5) TMI 492 Madras High Court had occasion to consider similar issue wherein substantial questions of law were ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t inclined to agree with the impugned order which has been made without even hearing the appellant or without affording any opportunity of hearing to the appellant. Appellant should have been granted opportunity to establish that claim in terms of proviso to Section 149. The impugned order rejecting the request made is hit by the violation of principles of natural justice. Without going into further merits of the issue we would set aside this impugned order for this reason only and remand the matter back to Commissioner for re-consideration of this request made under Section 149 after affording proper opportunity to the appellant for presenting their case. Appellant has in their submissions before us placed reliance on the following decisions: Share Medical Care [2007 (209) ELT 321 (SC)] Diamond Engineering Chennai P Ltd. [2013 (288) ELT 265 (T-Chennai)] VRA Cotton Mill Pvt Ltd [2014 (309) ELT 100 (T-Ahmd)] Leotex {2012 (281) ELT 173 (Ker)] rajguru Impex (India) Ltd. [2013 (298) ELT 213 (T-Ahmd) Parle Products Pvt Ltd. [2017 (358) ELT 341 (T-Mum)] Circular No 16/2023-Cus (Based on Cosmo Film Judgement) As we are not considering the matter on the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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