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TMI Blog2024 (12) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... MAHALAXMI RUBTECH LTD. VERSUS UNION OF INDIA [ 2021 (3) TMI 240 - GUJARAT HIGH COURT ]. HELD THAT:- It was not open to the Commissioner to reject the Appellant s requests for conversion of DFIA Shipping Bills to Drawback Shipping Bills by relying on Para 3 (a) of the Board Circular No.36/2010-Cus dated 23-9-2010 since the Hon ble Gujarat High Court in the case of MESSRS MAHALAXMI RUBTECH LTD. VERSUS UNION OF INDIA [ 2021 (3) TMI 240 - GUJARAT HIGH COURT ], has by its judgment and order dated 2-3-2021 held that the said Board Circular No. 36/2010-Cus dated 23-9-2010, to the extent of Para 3 (a), to be ultra vires Article 14 and 19(1)(g) of the Constitution of India and also as ultra vires Section 149 of the Customs Act, 1962. Since the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent Appeal is whether the rejection of the Appellant s request for conversion of Shipping Bills from DFIA to Drawback on the ground that the request was made after the expiry of the three months from the date of let export order as prescribed under Para 3(a) of the CBIC Circular No. 36/2010-Customs dated 23-9-2010 is sustainable in law, when the said Para 3(a) of the said Circular has been held to be ultra vires Articles 14 and 19 (1) (g) of the Constitution of India as also ultra vires Section 149 of the Customs Act 1962, by the Hon ble Gujarat High Court by its decision in Messrs. Mahalaxmi Rubtech Ltd v UOI- 2021 (3) TMI 240. 1.1 The facts in brief are that the Appellant is a manufacturer-exporter of Indian Raw Cotton-Type-Not carded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills to Drawback Shipping Bills. 1.4 The Appellant accordingly by letters dated 20-7-2013 and 21-3-2014 respectively, applied to customs for conversion of the said 10 + 5 = 15 Shipping Bills from DFIA to Drawback Shipping Bills. 1.5 In respect of similar earlier exports under DFIA which were cancelled as no imports thereunder were made, the Appellant s request for conversion of shipping bills from DFIA to Drawback Scheme had been rejected by Commissioner of Customs, Jamnagar (Preventive) by Orders dated 15-1-2014 and 29-3-2013, by relying on CBEC Circular No.36/2010-CUS dated 23-9-2010, on the ground that the request for conversion had been made after expiry of three months from the date of Let Export Order (LEO). Against the said Orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requests for conversion of the said 15 Shipping Bills were kept in abeyance to await the outcome of the said appeal before the Hon ble High Court. The Hon ble Gujarat High Court dismissed the Department s appeal against the said Order dated 1-8-2014 by Order dated 10-10-2022. 1.9 In view of the dismissal of the department s appeal by the Hon ble High Court in respect of the said similar earlier matters, the Appellant once again requested the Commissioner of Customs (Preventive), Jamnagar by its two letters dated 24-8-2023 for conversion of the said 15 shipping bills from DFIA to Drawback Shipping Bills. 1.10 The Commissioner of Customs, (Preventive), Jamnagar, without granting any personal hearing, rejected the said applications of the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Commissioner to reject the Appellant s requests for conversion of DFIA Shipping Bills to Drawback Shipping Bills by relying on Para 3 (a) of the Board Circular No.36/2010-Cus dated 23-9-2010 since the Hon ble Gujarat High Court in the case of Mahalaxmi Rubtech Ltd v UOI-2021 (3) TMI 240, has by its judgment and order dated 2-3-2021 held that the said Board Circular No. 36/2010-Cus dated 23-9-2010, to the extent of Para 3 (a), to be ultra vires Article 14 and 19(1)(g) of the Constitution of India and also as ultra vires Section 149 of the Customs Act, 1962. Since the only basis for rejecting the Appellant s request for conversion of the Shipping Bills in the impugned Order/ decision of the Commissioner, is Para 3(a) of the said Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther seen that under Para 4.28 (e) of the Handbook of Procedures 2009-14, the Appellant could have applied for conversion of the Shipping Bills only after the cancellation of the DFIA licenses by the licensing authority. The DFIA licenses were cancelled by two letters dated 11-7-2013 and 12-3-2014 and soon thereafter the Appellant applied for conversion by letters dated 20-7-2013 and 21-3-2014 which were followed by various reminders; there was therefore no delay on the part of the Appellant in applying for conversion of the Shipping Bills. 4.4 Considering the submissions made and following the aforesaid decisions of Hon ble High Court and of this Tribunal, we hold that no time limit was prescribed in Para 4.28 (e) of the Handbook of Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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