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2022 (12) TMI 668 - AT - CustomsAmendment to shipping bill - Period of limitation - non-availability of goods for examination - export of cold rolled non grain oriented silicon electrical steel sheet/coils in fully/semi-processed state - first proviso in section 149 of Customs Act, 1962 - appellant intends to seek the benefit afforded by ‘zero duty export promotion capital goods cum duty free import authorization (EPCG–cum–DFIA)’ scheme instead of ‘zero duty export promotion capital goods (EPCG)’ scheme in the Foreign Trade Policy (FTP) HELD THAT:- Though the issue has been portrayed as befitting ascertainment within the rigour of first proviso in section 149 of Customs Act, 1962 as shipping bills were sought to be amended, the distinction between the generality of the principal enactment and the particularity of the proviso has been enunciated in re Haldiram Foods International Pvt Ltd. [2020 (12) TMI 1229 - CESTAT MUMBAI] Rejection of request for amendment in circumstances that are outrightly not in conformity with the literal phraseology of section 149 of Customs Act, 1962 may not be overturned for lack jurisdiction but can upon passing the test of conformity with either the principal enactment or the more rigourous in the proviso, as the case may be. From the nominal nature of the amendment sought without impacting any statutorily prescribed detail in the entry mandated by section 50 of Customs Act, 1962, the application does not fall within the sphere of the proviso that has been resorted to in the impugned order. The impugned order has been passed without issue of show cause notice. And yet, the ‘proper officer’ did not hesitate to decide on the lack of wherewithal for ascertainment of ‘value addition’ norms in the exports, of the raw materials and other inputs in the manufacture of the goods, of conformity of the utilized inputs with permissibility in the Standard Input Output Norms (SION) and, indeed, the classification of the exported goods within the said ‘standard input output norms (SION)’ in the Foreign Trade Policy. The determination of ineligibility, for want of the goods physically, to operate under the ‘duty free import authorization (DFIA)’ scheme in the Foreign Trade Policy (FTP) as ground to refuse the amendment traverses beyond the scope and intent of section 149 of Customs Act, 1962. Non-availability of goods for examination - there is no controverting of the submission of Learned Counsel for appellant that post-exportation processing of application under ‘duty free import authorization (DFIA)’ scheme in the Foreign Trade Policy (FTP) by the Directorate General of Foreign Trade (DGFT) is not contingent upon any specific evaluation of the exported goods. Neither is the pivotal role of that agency contested in the submission of Learned Authorized Representative. To decide on eligibility of import at this stage is patently in excess of jurisdiction and peremptory. This premature filtration at the threshold not envisaged in section 149 of Customs Act, 1962 and arrogating of ‘policing’ over statutory authority vested in another agency of the State is unacceptable. In the light of our findings supra, we find no reason to sustain the order impugned before us. Consequently, we set aside the rejection to allow the appeal and direct the respondent-Commissioner to effect the amendments in the shipping bills as sought for by the appellant.
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