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TMI Blog2023 (9) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... he shipping bills can be allowed by the Proper Officer subject to the only rider that same is based on documentary evidence that must be shown to be in existence at the time the goods were exported. Before alluding to the Notification dated 29 June 2012, it is pertinent to mention that admittedly, the goods already stood exported from time to time and the respondents were otherwise entitled to claim STR paid on input services, which had been prescribed at a fixed rate of 0.06% of the FOB value of exported goods falling under CTH 71 vide serial No. 162 of the schedule to the notification. Further, no dispute was raised by the appellant to the assertion/declaration by the respondents in their request letter dated 14 March 2017 that the sales remittances had already been received on each of the export consignments as per the RBI guidelines. It is borne out from the record that the respondents in their appeal before the learned CESTAT had specifically made a categorical assertion in ground (R) that they had suffered Service Tax on the input services and apparently had annexed relevant details, although the same were not alluded to while passing the impugned order dated 24 Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for claim of Service Tax Rebate [STR] which was required to be made in electronic shipping bill as per paragraph 2 of the Notification No. 41/2012-Service Tax dated 29 June 2012.[Relevant Notification] Accordingly, by way of amendment, they wanted to endorse the said declaration on the said shipping bills so that they could claim STR under the relevant notification. It is an admitted case that the respondents also filed all the relevant documents viz. shipping bills, relevant invoices, airway bills, bank realization certificate, etc. along with their applications for amendment as required vide Section 149 of the Act. 3. The Adjudicating Authority did not allow the amendment application filed by any of the Respondent and dismissed the same vide order dated 01 July 2017 holding that amendment can only be allowed on the basis of documentary evidence, which was in existence at the time of export, but the Respondents have not been able to produce any such documentary evidence. Being aggrieved, the Respondents preferred respective appeals before the Commissioner of Customs (Appeal) but the same were also rejected by the Commissioner (Appeal) vide order dated 06 June 2019 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of documents came up for interpretation before the Bombay High Court in Commissioner of Customs v/s. Man Industries (I) Ltd. The observations of the Bombay High Court are as follows: 3. We have also perused the order of the CESTAT, wherein it is clearly observed as under :- By application of this principle, it ought to be held that even if the Appellant's case did not fall within four corners of the Board's Circulars in question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts and circumstances of the case, particularly the undisputed position that the entire claim for conversion of the Shipping Bills was based on documentary evidences in form of Chartered Engineers Range Superintendent of Central Excise Certificates, arrived at on documents and material anterior to export i.e. which were in existence at the time of export of the goods, as is the requirement in the proviso to Section 149. 2.3 Since the entire claim of the 2.3. Appellant is established on the basis of documentary evidence already in existence at the time of export, there was no valid reason fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of exemption under category 2 and withdrawal of the said benefit cannot come in the way of the applicant claiming exemption under category 3 if the conditions laid down are fulfilled. The observations are as follows: 10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. So far as cancellation of exemption under category 2 is concerned, we are not called upon to decide legality or otherwise of the said decision as it has not been challenged before us in the present proceedings. The short question which we have to answer is whether the appellant could claim exemption under category 3 and non- consideration of the said application by the Deputy Director General (Medical) is in consonance with law. Our reply is in the negative. And we are supported in our view by the decisions of this Court. x x x x 16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther used for the export of goods, could the application of the respondent seeking amendment in the shipping bills filed by it, be still allowed by the learned Tribunal? III. Whether the learned Tribunal erred in not appreciating the fact that the terms and conditions of Notification No. 41/2012-ST dated 29.6.2012 required strict compliance and the respondent failed in doing so? ANALYSIS AND REASONING: 6. Having considered the submissions addressed by the learned counsels for the rival parties at the Bar, we find that it is a common case of the parties that the shipping bills were filed during the period 01 April 2014 to 31 March 2015 without declaration for claim of STR and the proposed amendments were sought belatedly by the respondents on 14 March 2017. Since the decision in the instant appeals hinges on the interpretation of Section 149 besides the Notification dated 29 June 2012, it would be relevant to reproduce both: Section 149- Amendment of documents.- Save as otherwise provided in section 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: Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of rates specified in the Schedule of rates annexed to this notification (hereinafter referred to as the Schedule), as per the procedure specified in paragraph 2 or on the basis of documents, as per the procedure specified in paragraph 3; (c) the rebate under the procedure specified in paragraph 3 shall not be claimed wherever the difference between the amount of rebate under the procedure specified in paragraph 2 and paragraph 3 is less than twenty per cent of the rebate available under the procedure specified in paragraph 2, (d) no CENVAT credit of service tax paid on the specified services used for export of goods has been taken under the CENVAT Credit Rules, 2004; (e) the rebate shall not be claimed by a unit or developer of a Special Economic Zone: (2) the rebate shall be claimed in the following manner, namely: (a) manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder shall register his central excise registration number and bank account number with the customs; (b) exporter who is not so registered under the provisions referred to in clause (a), shall register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; (d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter, (e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code number to the exporter referred to in clause (d)within seven days from the date of receipt of the said Form A-2; (f) on obtaining the service tax code, exporter referred to in clause (d), shall file the claim for rebate of service tax to the Assistant Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved in a claim is less than rupees five hundred, the same shall not be allowed; (k) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after satisfying himself,- (i) that the service tax rebate claim filed in Form A-1 Is complete in every respect; (ii) that duly certified documents have been submitted evidencing the payment of service tax on the specified services; (iii) that rebate has not been already received on the shipping bills or bills of export on the basis of procedure prescribed in paragraph 2; and (iv) that the rebate claimed is arithmetically accurate, refund the service tax paid on the specified service within a period of one month from the receipt of said claim: Provided that where the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, has reason to believe that the claim, or the enclosed documents are not in order or that there is a reason to deny such rebate, he may, after recording the reasons in writing, take action, in accordance with the provisions of the said Act and the rules made thereunder; (4) Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to specify payment of Service Tax on specified services utilised by them for carrying out export so as to seek rebate, it was urged that the use of word shall in the entire body of the Notification dated 29 June 2012 leaves no scope for doubt that the declaration had to be filed mandatorily at the time of filing of the shipping bills. Reliance was also placed on the decision in M/s. Eagle Flasks Industries Ltd. v. Commissioner of Central Excise, Pune 2004 [171] ELT 0296 S.C., wherein it was observed as under: The proviso makes it clear that where the goods are chargeable to nil rate of duty or where the exemption from the whole of the duty of excise leviable is granted on any of the six categories enumerated, the manufacturer is required to make a declaration and give an undertaking, as specified in the Form annexed while claiming exemption for the first time under this Notification and thereafter before the 15th day of April of each financial year. As found by the forums below, including CEGAT, factually, the declaration and the undertaking were not submitted by the appellants. This is not an empty formality. It is the foundation for availing the benefits under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Service tax rebate. 2. Further, as per the proviso to Sec. 149 of the Customs Act, 1962, the amendment has been sought on the basis of Notification No. 41/2012 dated 29th June, 2012 which was in existence at the time the goods were exported. 3. Further, we have complied with the provisions of the said notification and declares that we shall not make any claim for refund of service tax paid on the basis of procedure prescribed in Paragraph (3) as per Notification No. 41/2012 dated 29th June, 2012. 4. Further, with respect to the export, made by us during the aforesaid period, we have received the sale proceeds within the period allowed by the Reserve Bank of India under Section 8 of the Foreign Exchange Management Act, 1999. Copies of bill- wise Statement of bank realization have also been enclosed. 11. As regards the plea by the learned counsel for the appellant that no declaration was made by the respondents with regard to payment of Service Tax on the specified services availed by it before the exports, same is belied on a careful perusal of the order dated 01 July 2017 passed by the Adjudicating Authority, which, inter alia, brings out that the relevant do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to claim under the DEPB/DEEC cum- drawback scheme. From the plain reading of Section 149, it may be seen that exporter could not claim amendment in routine and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be exercised judiciously, but it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. The Commissioner in the remand case has rightly observed that the present case in fact relates to the request for conversion of shipping bills from one export promotion scheme into another and was not merely of an amendment in the shipping bill. The request was made for conversion from one scheme to another after the lapse of long period of more than one year. It was a case of request for conversion and not of amendment inasmuch by converting from one scheme to another, it was not only addition of word cum duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does exist is substantial; the appellant should, therefore, be permitted to amend its shipping bill. The respondents are directed to give effect to this order within the next two months. The appeal is consequently allowed. {bold portions emphasized} 13. To sum up, apparently all the relevant documents which could have been filed at the time of exports, were available as it is in original form and format without any change as such and were submitted along with the application for amendment of the shipping bills etc. on 14 March 2017. The respondents specifically stated in the application that no claim would be made by them under Paragraph (3) of the Relevant Notification. Resultantly, there was no reason to hold otherwise and nothing more was required to be done on the part of the respondents. Therefore, we find no legal infirmity, perversity or incorrect approach adopted by the learned CESTAT in passing the impugned orders dated 24 February 2020 thereby allowing the respondents the benefit of STR based on the exports made during the relevant period. 14. Accordingly, the present appeals are dismissed. The pending applications also stand disposed of. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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