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TMI Blog2024 (5) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... all, and any, request for amendment in terms of the consequences whereas the consequences to assessment of any benefit stems from another statutory provision which the designated authority is required to dispose off in accordance with the facts and the statutory framework of that empowerment. The convergence of the two in the impugned circular has had the effect of excoriating a jurisdiction contrary to legislated empowerment. We are led to conclude that the impugned order is in error. A contrary view would have the effect of allowing the jurisdiction in section 149 of Customs Act, 1962 to overwhelm the jurisdiction to decide as empowered by Customs Act, 1962 or any other law. Thus, we set aside the impugned order and direct the competent authority to dispose off the request of the applicant without considering the benefits that may flow thereby and strictly restricting itself to the judicial determination set out in the several decisions supra. X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 promotion scheme to which he is seeking conversion. (e) The exporter has not availed benefit of the export promotion scheme under which the good's were exported and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences whereas the consequences to assessment of any benefit stems from another statutory provision which the designated authority is required to dispose off in accordance with the facts and the statutory framework of that empowerment. The convergence of the two in the impugned circular has had the effect of excoriating a jurisdiction contrary to legislated empowerment. 7. All that the appellant has sought is for substitution of 'scheme code 19' by 'scheme code 03' in the shipping bills and related invoices. A nearly identical dispute, to the effect that '2. The request was denied for not adhering to circular no. 36/2010-Customs dated 23rd September 2010 of the Central Board of Excise & Customs (CBEC) which restricted conversions only to certain classes of bills in which the subjective satisfaction intended by section 149 of Customs Act, 1962 could be elicited from documentary evidence available at the time of export and only if sought for within three months from the date of 'let export order (LEO)' endorsed in the shipping bills.' had been agitated before the Mumbai bench of the Tribunal in Seco Tools India Pvt Ltd v. Commissioner of Customs (Export), Air Cargo Complex, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been effected for discharge of obligation is sought for from customs authorities by the licencing authority. Consequently, it is in the administration of schemes in the Foreign Trade Policy (FTP) that the oversight of consignment-wise transaction is supplemented by authentication of the instrument-wise aggregation of shipments which should have no bearing as a decision arising from section 149 of Customs Act, 1962. By dwelling on the consequence of amendment, which lies within the remit of the licencing authority, instead of the justification for discarding the request for amendment in each of the shipping bills, it appears to us that the framework within which amending enablement is to be exercised has been exceeded. 8. From a plain reading of the statutory empowerment for '…... Amendment of documents - Save as otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document after it has been 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 authorised to C/86895/2016 be amended after the imported goods have been cleared for hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after it has been presented in the customs house to be amended; PROVIDED that no amendment of a bill of entry or shipping bill or bill of export shall be so 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 in 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, it is seen that amendments of documents can be facilitated at any time after their presentation in the custom house. The seemingly 'openended' 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the proper officer who may deny the amendment only upon sufficient reason after considering the submissions of the applicant to counter the proposal for rejection. Any circumscribing or circumvention of this essence is not a correct exercise of discretion vested in the proper officer. 11. The request of the appellant herein has been denied for non-compliance with the circular cited in the impugned order. Appellant had been compelled to forgo coverage, and inconsistent with the law as it now appears, under a scheme in the Foreign Trade Policy that may have entitled them to post-exportation import of specified goods without payment of duty and it is only by the requested amendment that the Directorate General of Foreign Trade could consider extending that privilege to them. Approval of the request would exclude them from the reimbursement, contractually stipulated, in section 75 of Customs Act, 1962 and, therefore, entails recourse to section 149 of Customs Act, 1962. Further enablement for privileges flowing from a scheme, devised under the authority of Foreign Trade (Development & Regulation) Act, 1992, would emanate from the flexibility intended by circular no. 36/2010- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Central Board of Excise & Customs. 13. Central Board of Excise & Customs is, under section 151A of Customs Act, 1962, empowered to issue 'orders, instructions and directions' to officers of Customs who are required to observe and follow these; however, even when the superseding circular was communicated, such empowerment was limited to 'uniformity in the classification of goods or with respect to the levy of duty thereon' and it was only with effect from 8 th April 2011 that such 'orders, instructions and directions' could encompass '….implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any provision, restriction or procedure for import or export of goods…' In the absence of such authority, which could be construed as empowerment to enforce restricted applicability, the impugned circular, as well as its predecessor, could not have imposed rigid restrictions that are not contemplated in the parent statute and, in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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