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TMI Blog2023 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... i or other appropriate writ, direction or order striking down para 3(a) of Circular No. 36/2010 Custom dated 23.09.2010 as ultra vires Section 149 of the Custom Act, 1962 and also ultra vires of Articles 14 and 19(1)(g) of the Constitution of India. (b) that this Hon'ble Court be pleased to issue a writ of Certiorari or other appropriate writ, direction or order quashing the letter dated 29.12.2021 issued by Respondent No. 5 on behalf of Respondent No. 4. (c) that this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing Respondent No. 4 to accept application for conversion made by the Petitioners vide letter dated 25.10.2021 and 18.10.2021." 3. It is the case of the Petitioners that Petitioner No. 1 is a Merchant Exporter and Petitioner No. 2 is an Importer as also a Merchant Exporter. 4. On 20th September 2018, Petitioner No. 2 imported goods under Advance Authorization No. 5210042794 dated 9th October 2018, for carrying out the manufacturing process of final product for the purpose of Export. On 31st March 2021, Petitioner No. 2 was required to export the goods to fulfil its export obligations so as to avail of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 1962. 3. It is found that the request for amendment has been received on 25.10.2021 and the Let Export Order (LEO) for the shipping bill was granted on 25.05.2021. Thus, it is seen that the request for amendment has not been made within three months from the date of Let Export Order (LEO). 4. Therefore, it is intimated that your request for amendment /conversion has been rejected as time barred without going into the merits of the case by the competent authority, i.e. the Commissioner of Customs, NS-II, JNCH. sd/- (M.N. KOPADE) Assistant Commissioner of Customs, CEAC, NS-II, JNCH, NHAVA SHEVA" 7. Learned Counsel for the Petitioners in assailing the impugned communication has drawn our attention to the impugned Circular of which the legality has been assailed. Although the relevant clause of the Circular is clause 3(a), it would be appropriate to note the Circular in its entirety, which reads thus: CIRCULAR NO. 36/2010-CUSTOMS F.No. 600/121/2009-DBK Government of India Ministry of Finance Department of Revenue Central Board of Excise & Custom New Delhi, the 23rd September 2010 To All Chief Commissioners of Customs/Central Excise/Customs & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 endorsement made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and of 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 promotion scheme to which he is seeking conversion. e) The exporter has not availed benefit of the export pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een presented in the customs house to be amended. PROVIDED that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be 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:" 10. Section 149 post amendment by Finance Act, 2019 reads thus: "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 authorised to be 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, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adik's contention is premised on the insertion of the following words in Section 149 of the Customs Act, 1962: "In such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed." 14. Mr. Adik would submit that once the provision itself as amended confers a power and as wide as contained in the amended provision, it would not be correct for the Petitioners to contend that the impugned Circular No. 36/2010 dated 23rd September 2010 would be rendered ultra vires and illegal when it prescribes in paragraph 3(a) a time-limit of three months, from the date of the export order for making any application for amendment of the documents in question. In short, it is Mr. Adik's submission that by virtue of the amendment as effected by Section 29 of the Finance Act, 2019, the Circular would stand saved and it would continue to apply with full force, and at all material times, after its publication and for such reason it has been applied rightly by the Assistant Commissioner to reject the Petitioners request to amend the shipping bills. Mr. Adik has a peculiar submission when he submits that the decision as rendered by the Coordinate Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise and Customs (CBEC) prescribing for three months time period to make a request for amending the bills as per Section 149 of the Act, when no time was prescribed and once such time period was not prescribed then such Circular could not have been issued. 17. We are afraid that none of the contention, as urged by Mr. Adik, can be accepted to confer any validity to the impugned Circular in the light of the amendments to Section 149 as brought about by the Amendment Act, 2019. This for more than one reason. First and foremost, the impugned Circular at the time when it was issued cannot be traced to any authority, power and jurisdiction vested with the CBEC considering the provisions of Section 149 as it stood. Secondly, even the 2019 amendment cannot be construed to confer any retrospective validity to the said Circular. Even assuming if such an authority is to be conferred, the Circular falls to the ground as Section 149 itself provides that it can be issued only in a manner as may be prescribed. The use of such words in the provision are required to be understood in the context as the Act would provide. In such context, the relevant provisions are Section 2(32) of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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