TMI Blog2024 (4) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ee shipping bill into drawback shipping bill subject to the satisfaction of the conditions stipulation in Section 149 of the Customs Act, 1962. The Tribunal in the Final Order dated 17.02.2016 [ 2016 (3) TMI 889 - CESTAT KOLKATA] has categorically directed the proper officer to allow conversion of the free shipping bills to drawback shipping bills in terms of Section 149 of the Customs Act independent of the C.B.E.C. Circular dated 16.01.2004. It is observed that the ld. adjudicating authority in the impugned order has rejected their applications for conversion on the grounds which are not there in Section 149. Since the appellant has all the documents necessary for considering the amendment, under Section 149 of the Act, the impugned order denying the request for conversion of free shipping bills to drawback shipping bills is legally not sustainable. In view of the above, the impugned order is set aside and the conversion of the free shipping bills to drawback shipping bills is allowed. The impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Smt. Shreya Mundhra , Advocate for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds: - (i) The present case involves a request for conversion and not of amendment in as much as converting the free shipping bills to duty drawback shipping bills would cause change of entire status and character of documents. (ii) Even in case of amendment, proper officer may not be in possession of documents sought to be amended after lapse of such a long period particularly when the goods stood exported. For enabling an exporter to draw benefits of the scheme, not only physical verification of documents would be required but also the verification of the goods of export by the Customs officers is necessary. As the goods have been exported and none of the consignments have been subject to examination by the Customs, the acceptance of the prayer will be detrimental to the interest of Revenue. (iii) The submission of the exporter that they were unaware of the amendment carried out during the period of dispute is incorrect and cannot be treated as ignorance. The exporter seems to have suppressed the information and mis-represented the facts before the Tribunal. (iv) Rule 12(1)(a) of the Drawback Rules provides that conversion shall be allowed only if the assessee is able to satisfy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawback shipping bills were available with them at the time of export of the goods and hence, they have fulfilled the requirement as stipulated under Section 149. Accordingly, they submit that the impugned order denying the conversion may be set aside and their appeal be allowed. 6.2. In support of their contention, they relied on the following decisions: - i. Commissioner v. IOCL [2022 (5) TMI 879-Guj HC] affirming the ruling of the Tribunal as reported in 2020 (3) TMI 268-CESTAT Ahmedabad. ii. Gupta Enterprises v. Commissioner [2024 (17) Centax 77 (Tri.-Mad.).] iii. Autotech Industries (India) Private Ltd. v. Commissioner [2022 (380) ELT 364 (Tri.-Chennai)] 6.3. The appellant also submits that procedural infirmities cannot be the reason to deny substantive benefit which the appellant is otherwise entitled; Notification No. 39/2003-C.E.(N.T.) dated June 19, 2003 allows the appellant to claim drawback; this benefit cannot be denied to the appellant because they had not filed the drawback shipping bill at the time of export. The appellant submits that it was a bona fide error and they could not file the drawback shipping bill at the time of export due to lack of awareness. 6.4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Oil Corporation Ltd when exports are made through specified 'LCS' and payments are received in Indian Rupees. It is also his case that amendment of shipping bills was permissible as per the conditions of Sec 149 of the Customs Act 1962 and appellant was unaware of the amendment carried out in Notification No. 208/77-Cus during the period 19/6/2003 to 10/5/2004. As per Para-2.1 of the order 1/11/2007 Adjudicating authority has appreciated that appellant is entitled to the benefit of duty DBK against the export of petroleum Products to Nepal Oil Corporation Ltd. However in Paras-3.2 4 of the order he rejected appellant's request as per CBEC Circular No. 04/2004-Cus dt 16/1/2004. 4.1 It is observed that the same issue came before CESTAT Mumbai in the case of Man Industries (India) Ltd Vs. CC (EP) Mumbai (Supra) where following observations were made whileallowing the appeal ;- 1.6 Instructions in way of Board Circular No. 4/2004-Cus. Dated 16-1-2004 regarding conversion of Shipping Bills from one export promotion scheme to another export promotion scheme were issued. Request of the exporter was examined in view of Board Circular No. 4/2004-Cus., dated 16-1-2004 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 which is impermissible. 2.2 The Commissioner has clearly overlooked only circulars which are benevolent to the assessee that are binding upon the department and not circulars which seek to curtail statutory right. This proposition is clearly laid down by the Hon'ble Supreme Court in the case of Collector of Central Excise, Patna V. Usha Martin Industries - 1997 (94) E.L.T. 460 (S.C.), wherein it was held that. 21. Through a catena of decisions this Court has pronounced that Revenue cannot be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the department, more so when others have acted according to such instructions ........ The Supreme Court thus makes it clear that while a benevolent Circular is binding on the department and an assessee is always entitled to dispute the applicability correctness of a Board's Circular. By application of this principle, it ought to be held that even if the appellants' case did not fall within four corners of the Board's Circulars in que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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