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TMI Blog2024 (6) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... DGFT and DGFT is the authority to confirm whether the incentives as claimed by the appellant can be allowed. In Appellant s case M/S. SAURABH OVERSEAS TRADERS VERSUS THE COMMISSIONER OF CUSTOMS, COCHIN [ 2017 (7) TMI 7 - CESTAT BANGALORE] , DGFT considered issue and made suitable amendment in the license and same was produced as part of the appeal memorandum. But said facts were not considered by adjudicating authority while issuing impugned order. The issue whether the time limit prescribed as per the Board circular will apply in such cases was considered by this Tribunal in the case of M/S. AUTOTECH INDUSTRIES (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS CHENNAI IV COMMISSIONERATE [ 2021 (11) TMI 518 - CESTAT CHENNAI] and held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the respondent for suitable amendment in the shipping bill on August 2010. After completing export obligation, JDGFT has issued DFIA on 07.01.2011 against the very same import. However the request for amendment of the shipping bill from 00 to 003 is rejected on the ground that conversion of free shipping bill into an advanced shipping bill is not possible. 2. Aggrieved by said order, present appeal is filed. When the appeal came up for hearing, this Tribunal has considered the entire issue and set aside the order. Aggrieved by said order, respondent filed appeal before the Hon ble High court of Kerala. Hon ble High court vide judgement dated 19/01/2023 remanded the matter with following observation:- The point for consideration is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication authority has not considered the same. Moreover without specifying the reason for denying the request, an opportunity personal hearing was extended. Regarding the request for amendment Learned Counsel submits that the issue was considered by the Hon ble High Court of Kerala PARAYIL FOOD PRODUCTS PVT. LTD. (Supra) and held that the circular No.36/2010 dated 23.09.2010 fixing time limit of 3 Months seeking amendment of shipping bill is not proper. 4. There was no objection made by the adjudicating authority specifying the omission on part of appellant and only extended an opportunity for personnel hearing. During personnel hearing the facts regarding mentioning of the scheme in the shipping bill where brought to the notice of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 5. Learned counsel draw our attention to the invoices produced as part of relied document where it is clearly stated that invoice No.03/09-10 Dated 22/03/ which clearly shows. 6. Further shipping bill pertains to impugned goods also clearly shown Under DIGC scheme filed No. 07/21/076/00/319/AM 09 and VKGYU scheme chapter 3 point 13-3(I,I,I) FTP. Thus the request for amendment in the present case cannot be considered as mere request for amending a free shipping bill into shipping bill for claiming incentives at a later stage after export but the scheme very well stated in the shipping bill itself at the time of export. 7. Learned counsel drew our attention to following judgements in this regard 1. Union of India Others vs. Madhumilan Syn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, I find that the appellant has claimed the benefit of DFIA scheme and VKGUY scheme at the time of export and has specifically mentioned the DFIA file number and also claimed VKGUY scheme in the shipping bills as well as in the invoices. But due to oversight and mistake on the part of Custom House Agent, who has mentioned the code as '00' instead of '03' will not disentitle the appellant to claim the benefit of export incentives provided under the scheme. Further, I also find that DGFT has accepted the exports made under DFIA scheme and issued the licences after accepting the clarification given by the appellant and once they have been issued the certificate under the VKGUY scheme and the licence under DFIA scheme, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (380) E.L.T. 364 (Tri. - Chennai)] 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. v. CC, Chennai [reported in 2021 (12) TMI 393-CESTAT Chennai] followed the decision of the Hon ble jurisdictional High Court and held that the Board circular cannot be pressed into application to deny the request for conversion of shipping bills. As held by various authority including Hon ble High court of Kerala in the matter of PARAYIL FOOD PRODUCTS PVT. LTD.(Supra) circular issued by department cannot assume the role of the principal Act to limit the provisions of statute. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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