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TMI Blog2024 (6) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... t documents. Their only mistake was not to have given the details of Advance Licenses in the Bills of Export (Shipping Bills). Amending the Shipping Bills/Bills of Export by adding the Advance Licence numbers after proper verification of the document would only be a minor rectification and would not be in the nature of amendment. The Tribunals and High Courts have been consistently holding that under Section 149, the proper officer has the power to carry out the amendment based on the documents which are available at the time of imports/exports. In this case, there is no doubt that such documents were available at the time of export itself and such Invoices and packing list were part of the documents while the goods were cleared to Nepal. The Revenue has resorted to an indirect method to Review its decision and pursue the matter with utmost zeal, which has resulted in the issue coming before the Tribunal twice in a span of 10 years. The Commissioner (Appeals) in the impugned Order has simply ignored the factual details and two detailed Orders of her predecessors and the earlier Review Order and has felt it necessary to simply toe the line of the Revenue - Without doubt, all these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals). Accordingly, Revenue filed their Appeal before the Commissioner (Appeals), on the ground that the rectification carried out amounts to conversion of Free Shipping Bills into Export Promotion Scheme which is not allowed to be done by the Assistant Commissioner and only Commissioner is authorized to do so. The Commissioner (Appeals) vide OIA No. 122/PAT/Customs/Appeal/2012 dated 25/5/2012 dismissed the Appeal filed by the Revenue and upheld the OIO passed by the lower authority. Being aggrieved, the Revenue filed an appeal before the Tribunal. The Tribunal vide its Final Order No. FO/A/75135/2014 dated 02/04/2014 remanded the matter to the Commissioner (Appeals) on the ground that the Department s pleadings were not properly considered and principles of natural justice were not followed by the Commissioner (Appeals). 3. The Commissioner (Appeals) took up the Appeal based on the Remand Order of the Tribunal and passed the OIA No. 873/Pat/Cus/Appeal/2014 dated 29/09/2014 holding that conversion of Free Shipping Bill to Export Promotion Shipping Bill is not permitted. Being aggrieved, the Appellant is before the Tribunal. 4. The Learned Consultant points out to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le coming to her conclusion. In view of these submissions, he prays that the present Appeal may be allowed. 6. The Learned AR reiterates the findings of the Commissioner (Appeals) and prays that the present Appeal may be dismissed. 7. Heard both sides and perused the documents. 8. On going through the factual details and perusing some of the Bills of Export and Invoices, it is clear that the Appellant has mentioned the Advance License details in the Invoices and Packing lists. Due to inadvertent error, the Advance License details were not shown in the Bills of Exports. Therefore, the Commissioner (Appeals) vide his OIA dated 16/3/2011 has correctly held that is a matter of rectification of error which is permissible under Section 149 of the Customs Act, 1962. It is also observed that the Committee of Commissioner has reviewed and approved this OIA and no further Appeal was filed. In such a case, we are of the firm view that the issue had already reached finality. The Department could not have filed any further Appeal when the Adjudicating Authority vide OIO dated 15/11/2011 has merely followed the direction given under OIA dated 16/3/2011 that too after ascertaining that the OIA wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier OIA. Therefore, the ratio laid down in the cited case law would be squarely applicable. Therefore, on this count itself, we set aside the impugned Order and allow the Appeal. 11. Probably these details were not brought to the knowledge of the Tribunal when the case was heard on 02/04/2014 wherein the Department took the pleading that natural justice was violated in their case and on that ground only, the matter was remanded to the Commissioner (Appeals). In the present Impugned Order, the Commissioner (Appeals) has noted that the earlier OIA dated 16/03/2011 was accepted by the Committee of Commissioner or but has not given any findings as to how the Department could have carried forward the litigation in this manner. It is also noted that during the second round of litigation when the Revenue filed their Appeal against the OIO dated 15/11/2011, the Commissioner (Appeals) has clearly given his findings which are reproduced below:- I have examined the facts of the case and the submission made by the Appellant. I have also examined the order of the Assistant Commissioner, Jogbani who permitted the rectification/amendment in the Shipping Bills as per provision of Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d records. The appellant reiterated their points as submitted in the grounds of appeal. Departmental representative objected to their grounds and submitted that the change can not be allowed on free shipping bill. Assistant Commissioner, Jobgani also informed that the particular export was made under General Export and no sampling was done . I find that this is a case of the conversion of shipping bill from one case to another. I agree with the view of appellant the conversion is not allowed in such cases. I had that the exporter is not entitled for conversion from one scheme to another scheme. 4. Departmental appeal allowed. [Emphasis supplied] 13. On going through the Provisions of Section 149, we find that where proper documentary evidence is shown, the proper officer can get the Bill of Entry/Bill of Export/Shipping Bill amended. On this issue, Madras High Court in the case of Hewlett Packard Enterprise India (P) Ltd. Vs. JT. Commr. of Cus., Chennai-2021 (375) ELT 488 (Madras), has held as under:- 10 . The provisions of Section 149 of the Customs Act providing for amendment of a B/E read as follows : 149. Amendment of documents . - Save as otherwise provided in Sections 30 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king list were part of the documents while the goods were cleared to Nepal. 16. Before parting, as per our observations given above, the Revenue has resorted to an indirect method to Review its decision and pursue the matter with utmost zeal, which has resulted in the issue coming before the Tribunal twice in a span of 10 years. The Commissioner (Appeals) in the impugned Order has simply ignored the factual details and two detailed Orders of her predecessors and the earlier Review Order and has felt it necessary to simply toe the line of the Revenue. Without doubt, all these actions have resulted in loss of precious time by the Tribunal, which could have easily been avoided. This also has resulted in the Appellant being put to enormous difficulty since they were not able to obtain closure reports for the Advance Licences from the DGFT though they have fulfilled the export obligations about 14 years back. We would like to record our strong displeasure for the way in which this prolonged litigation has been carried out by Revenue. 17. In view of our detailed findings given above, we set aside the Impugned Order and allow the Appeal with consequential relief, if any, as per law. (Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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