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TMI Blog2024 (3) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... US M/S LYKIS LIMITED [ 2021 (2) TMI 261 - GUJARAT HIGH COURT] after having a look at Circular No. 36/2010 dated 23.09.2010 struck down only the para 3(a) which had prescribed of three months limitation from the date of export order. This court finds validity of condition 3(e) of Circular No. 36/2010 dated 23.09.2010 survives and therefore holds that once a benefit under which shipping bill was filed has been availed, the conversion to any other scheme cannot be allowed. It is thus clear that the same has a bigger objective of atleast giving finality to some extent to decisions earlier taken while exporting, as is the case of the appellants in this matter. This court therefore, finds that once draw back benefit was availed then there was no scope for seeking conversion to any other scheme And in relation to mis-declaration clause in 3(e) above being disjunctive as in case later proposition of mis-declaration, manipulation etc., coming into play, the exporter even if has been precluded from availment can still be denied conversion. This court finds that matter falls within the ambit of para 3(e) of the above Circular and the conversion request after having enjoyed the benefit of draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 634 (Del.) V.R.A. Cotton Mills Pvt. Ltd. 2014 (309) ELT 100 (Tri. Amd) ITC Limited 2011 (269) ELT 378 (Tri. Chennai) Man Industries (India) Ltd. 2006 (202) ELT 433 (Tri. Mum) It was therefore pleaded that conversion should be permitted by setting aside the impugned order and by following the above mentioned judgments. Learned authorised representative, on the other hand, seeks to rely on the findings of the order in original. Learned authorised representative specially seeks to rely on the findings of the impugned order which are contained in para 10 to para 26 of the impugned order and seeks approval of the impugned order and dismissal of the appeal. Para 10. I find that with reference to conversion of Shipping Bill under the provisions of the Section 149 of Customs Act, 1962, Circular No. 36/2010-Cus dated 23.09.2010 has been issued by the CBEC (now, CBIC). Para 3 of the circular states that: 3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (for example, from Advance Authorization/DFIA scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , CBIC) are binding on the department and it cannot take a stand contrary to the instructions issued by the Board. This view is supported by series of decisions of the Hon'ble Supreme Court, including the judgment pronounced by the Hon'ble Appex Court in the case of Commissioner Of Customs, Calcutta Vs. Indian Oil Corporation Ltd reported as 2004 (165) E.L.T. 257 (S.C), wherein the Hon'ble apex court has found that : 11. Despite the categorical language of the clarification by the Constitution Bench, the issue was again sought to be raised before a Bench of three Judges In Collector of Central Excise, Vadodara v. Dhiren Chemicals Industries - 2002 (143) E.L.T. 19 where the view of the Constitution. Bench regarding the binding nature of circulars issued under Section 378 of the Central Excise Act, 1944 was reiterated after it was drawn to the attention of the Court by the Revenue that there were in fact circulars issued by the Central Board of Excise and Customs which gave a different interpretation to the phrase as interpreted by the Constitution Bench. The same view has also been taken in Simplex Castings Ltd. v. Com Beach The Customs, Vishakhapatnam (2003.(155) E.LT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter has claimed and received Drawback in respect of all the Impugned shipping bills. 15. I further find from the perusal of export Invoices/commercial Invoices that exporter has categorically mentioned in export invoices/commercial invoices that - The shipment under Duty drawback scheme Tariff No......, We intend to claim benefit under RODTEP scheme. Exporter has also made similar remarks on shipping bills as well in relation to RODTEP scheme. 16. In view of above facts and documentary evidences on record, exporter has failed to make a convincing case for themselves that due to human error they could not export under Advance Authorization. I am not inclined to form an opinion that not filling Advance Authorization details on such a large No. of invoices shipping bills for such a long period could be a result of human error. 17. I further find that Exporter has requested for conversion of impugned shipping bills from a less rigorous examination scheme to a more rigorous examination scheme. I find that Para-3 of Circular No. 36/2010-Cus dated 23.09.2010 prescribes that - Conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance License scheme after avallment of Export benefit/incentive under the scheme in which the goods were originally exported. 21. Exporter has relied upon various case laws in their favour. I find that most of the case laws cited by the exporter are in relation to quashing of time restriction of 3 months for conversion of Shipping bills. Exporter relied upon the decision of Hon'ble High Court of Delhi in the case of Commissioner of Customs Vs. M/s M.D Overseas Others (CUSAA 30/2021 CM APPI. 30316/2021). Hon'ble High Court of Delhi has observed that all records are available and goods were exported as free shipping bills and thereafter rejected the appeal of the Revenue. I find that facts of the case in the cited case were entirely different form the present case. In the present case conversion is sought after benefit of export scheme under which goods were exported has already been availed. Exported has further relied upon the decision of Hon'ble High Court of Mumbal in the case of Colossustex Pvt Ltd Todi Rayons Pvt. Ltd. Vs. UOI (Writ Petition No. 2010 of 2022). Hon'ble High Court of Mumbal has observed that the adjudicating authority has rejected the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court has observed that- merely because no time limitation prescribed under Section 149 ibid for purpose of seeking amendment/conversion, it does not follow that request in that regard coulu be made after passage of any length of time. Request could not have been entertained without examination of records- Not fair to expect department to maintain, and be possessed of, the records after passage of five long years. 24. Exporter has further relied upon Hon'ble High Court of Punjab Haryana in the case of Commissioner of Customs, ICD, GRFL, Vs. Bectos Food, Specialities Ltd. (CUSAP-10/2019) dt 15.02.2023. Hon'ble High Court of Punjab Haryana while dismissing appeal of the Revenue has observed that no time limit is prescribed in Section 149 for conversion of shipping bills. In the cited case applications for conversion were rejected only because of time limit and hence are not squarely applicable to the present case. Exporter has further relied upon the decision of Hon'ble High Court of Gujarat in the case of Oriental Carbon Chemical Ltd. Vs. UOI reported in 2021 (377) E.L.T 850 (Guj). Hon'ble High Court of Gujarat has observed that application for conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have falled to put anything on record which justify that the impugned Shipping bills are eligible for conversion to Advance License scheme in the instant case. In view of discussions in foregoing paras, I find that the Impugned 38 shipping bills have failed to pass the test of statutory provisions for conversion. This court has considered the rival submissions. It is seen from the findings of the learned Commissioner that he has given detailed findings while refusing conversion from Draw Back Scheme to Advance License Scheme at such belated stage even after same was availed by the appellants sometime after the exports was done. The order clearly discusses the scheme and legal provisions related thereto and how freely done conversion from one scheme to another after availing benefit can jeopardize revenue interest as both have their own procedural encompass and how conversion from less rigorous to more rigorous examination scheme was not permitted by the Circular No. 36/2010. This court also finds that Hon ble High Court after having a look at Circular No. 36/2010 dated 23.09.2010 struck down only the para 3(a) which had prescribed of three months limitation from the date of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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