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TMI Blog2004 (12) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... 5]. Hence they returned the documents to their CHA for necessary correction. Meanwhile, their application to the Joint Director General of Foreign Trade (JDGFT) for DEPB credit in their Pass Book was rejected by that authority on the ground that the EP copies of the shipping bills did not mention 'DEPB'. On 13-2-2004, the appellants applied to the Commissioner of Customs (Export) to condone the above mistake (omission of 'DEPB' in shipping bills) and allow them to rectify the mistake by changing the name of EP scheme from "EPCG" to "EPCG and DEPB" (Code No. 12 to Code-No. 55). They submitted that the mistake was made inadvertently by their CHA. The CHA also admitted the mistake in their separate letter dated 16-2-2004 addressed to the Commissioner, Acting upon the request of the appellants, the Customs House called for certain documents (EP copy of Shipping Bill in original, Banker's Realization Certificate in original, Invoice Packing List and ARE-1 Bill of Lading), which were produced by the appellants. Later, the appellants were informed in writing by the Assistant Commissioner of Customs (Export), Customs House, Chennai that their request for conversion of Shipping Bills fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been a dispute due to non-mentioning of the correct scheme. *** The claim has been denied. It is immaterial as to whether it is by JDGFT/MOC or customs. Even if it is denied by anyone of the authorities, the Commissioner of Customs has authority to decide on merits. Therefore, we would like to submit that our case falls within the ambit of Circular No. 4/2004 Cus. dated 16-1-2004. However, we request your goodselves to take a decision on merit treating this as a procedural lapse and condone the same so that we get the due claim. Thanking you, Yours faithfully, Sd/- P. SURESH (Senior Manager) After considering the above case of the party, the Commissioner recorded his findings/observations on the margins of the party's letter itself, which read thus :- *"No proof to show that Customs or JDGFT has denied the benefit." **"No evidence. Conditions not fulfilled." ***"Nothing has been denied. Original SB as filed has been assessed. Conversion request has been denied since conditions prescribed under Board's Circular have not been fulfilled." ****"It is regretted that, in view of Board's circular and..…(not legible) request for conversion cannot be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPB Scheme, the exporter makes an application to the JDGFT for issue of Pass Book, and commences exports. After fulfilment of export obligation, the Pass Book-holder produces the EP copies of Shipping Bills together with the Pass Book to JDGFT for making credit entries. Such credit is allowed at pre determined rates on the deemed import content of the export goods and the same is available to Stainless Steel Coils falling under Sl. No. 390 of the Products Group-Engineering. This credit can be used for import of any goods other than those in the Negative List. Under the EPCG scheme, import licences are issued first for import of capital goods at a concessional rate of Customs duty. The export obligation is fulfilled by export of goods manufactured by the use of such capital goods. Normally, it is four times the CIF value of the imported capital goods and has to be fulfilled in five years. Under "Zero duty EPCG" Scheme, 'however, the export obligation is six times the CIF value of the capital goods and has to be fulfilled in eight years. These exports can also be reckoned for DEPB Scheme and, when so done, it is a combination of schemes, referred to as "EPCG and DEPB (post exports)'' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty EPCG" to "EPCG and DEPB (post export)" in the Shipping Bills. It was a request for a simple amendment of entry in Shipping Bill in keeping with the real nature of export. The party did not ask for conversion of the nature of exports. The exports were already under the EPCG-DEPB Scheme as acknowledged by the Customs through assessment of the Shipping Bills (which mentioned "EPCG Scheme") and certification of exports in Part B of the ARE-1s (which mentioned "Export under DEPB"). The exporter's request was only for conversion of Shipping Bills from one EP Scheme to another as envisaged in para 3.2 of DOR Circular No. 4/2004-Cus. dated 16-1-2004. We have also noticed that both sides agree that the party's request could have been dealt with in terms of this Circular only. 6. The Commissioner penned that the conditions stipulated in para 3.2 of the above Circular were not fulfilled by the exporter, and he declined their request. We extract the following from para 3.2 of the Circular : ".......As regards permitting conversion of shipping Bills from one export promotion scheme to another is concerned, it is clarified that such conversion should only be allowed where the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early as on 13-2-2004. It is, now, their case, pleaded through counsel, that this request was made within the period of one month prescribed under Condition (a), para 3.2 of DOR Circular No. 4/2004-Cus. ibid. This case of theirs has not been rebutted by, or on behalf of, the respondent. Ld. Counsel also argued that the appellants had complied with Conditions (b) to (e) also. Again, these arguments have also gone unrebutted. Therefore, we have to hold that the appellants fulfilled all the above conditions for conversion of the Shipping Bills from "Zero duty EPCG" to "EPCG and DEPB (post export)". The Revenue has no case that, once this change of Scheme entry in SBs is made, the exporter will still be ineligible for DEPB benefit. Therefore, the EP copies of the subject Shipping Bills should be allowed to be amended so that the appellants can claim DEPB benefit before the JDGFT. 7. In the result, the impugned proceedings are set aside and this appeal is allowed. It is also ordered that "EPCG and DEPB (post export)" be substituted for "Zero duty EPCG" in the subject Shipping Bills. It will, now, be open to the appellants to apply to the JDGFT for DEPB credit in respect of the exports ..... X X X X Extracts X X X X X X X X Extracts X X X X
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