TMI Blog2006 (3) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... ht, to seek any amendment same is lost. The statutory right, as also the statutory obligation of the proper officer to amend a document after its presentation in the Custom House cannot be curtailed or set to naught by circulars of the Board. The approach adopted by the Respondent has the effect of inferring from conferring upon the Board Circular, a status of a statute overruling the proviso to Section 149 of the Customs Act, 1962 which is impermissible. Since the entire claim of the appellant is established on the basis of documentary evidence already in existence at the time of export, there was no valid reason for the Commissioner to have refused such an amendment. The impugned order passed is therefore clearly untenable and is to be set aside. The order is set aside and the appeal is allowed. - Smt. Archana Wadhwa, Shri S.S. Sekhon, JJ. REPRESENTED BY : Shri Vipin Jain, Advocate with Vishal Agrawal, CA, for the Appellant. Shri U.H. Jadhav, DR, for the Respondent. [Order per : S.S. Sekhon, Member (T)]. M/s. Man Industries (I) Ltd. vide Shipping Bill No. 1000017585, 1000017579 1000017580 all dated 25-10-2002 exported carbon steel submerged ARC welded pipes under DEPB Scheme.Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial) in the manufacture of the resultant export product covered under above Shipping Bills. Again vide letter dated 29-8-2003 they reiterated that by mistake the DEPB Shipping Bills have been filed instead of DEEC Shipping Bills. They submitted that they had already imported the HR Plates Welding Wire, Welding Flux, X-Ray Films against the Advance Licence No. 0310156546 dated 3-9-2002 1.5 Exporter vide letter dated 13-11-2003 submitted a certificate dated 29-10-2003 issued by the Supdt. Customs Excise, Pithampur certifying that M/s. Man Industries (I) Ltd. imported HR Plates under Advance Licence No. 0310156546 dated 3-9-2002 and manufactured and exported Carbon Steel Submerged ARC Welded Pipes. 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 same was rejected as pre condition of the referred circular is that the conversion of Shipping Bill from one export promotion scheme to another promotion scheme is allowed only in cases where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003, in cases where the exporter wanted to avail benefit of a particular export promotion scheme but he was forced to file a free shipping bill by customs or in cases where benefit of an export promotion scheme was denied to the exporter by Customs or DGFT, in all such cases conversion of shipping bill may be allowed subject to certain conditions. As per circular referred, following types of conversion of Shipping bill may be allowed : 1. Where the exporter wanted to avail benefit of an export promotion scheme (including DBK) but he was forced to file free shipping bill. 2. Where an exporter had filed Shipping Bill under a particular export promotion scheme but benefit of that scheme was denied to him by DGFT or Customs. Also as per Board Circular No. 40/2003 dated 12-5-2003, conversion of Shipping Bills from one export promotion scheme to another (where the benefit of that scheme has been refused by Customs/DGFT vide para 4 (ii) of DOR Circular No. 6/2003-Cus., may be permitted by the Commissioner on case to case basis. Here, I find that the exporters M/s. Man Industries (I) Ltd. were entitled to avail the benefits of DEEC Scheme but they suo motu and on their own choice preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thought. Since Shipping Bills were filed under DEPB Scheme, examination Order by the assessing AO and examination report by examining AO were in the light of S.O. No. 7300/97 and 7306/97, which elaborate the export procedure under DEPB Scheme. I observe that exporter applied for conversion of DEPB Shipping Bills to DEEC Shipping Bills on 23-12-2002 when they later realised that exporting the subject goods under DEPB Scheme they would get higher incentives on account of Duty foregone benefit under DEEC as compared to benefit under DEPB Scheme. In case of Smruti Pottery Works v. CC, Kandla, advocate for the appellant submitted that appellant exported consignment of sanitary wares under Shipping Bills and they wanted to avail the benefits of DFRC in respect of their exports which has been refused by the Customs Authorities as the certificate from Central Excise Officers listing the inputs used in the manufacture of the exports product was required, that in these circumstances they were forced to file Free Shipping Bills. He also submitted that their request for conversion of Free Shipping Bill to DFRC Shipping Bill was rejected on the ground that they had not established that they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the assessee that are binding upon the department and not circulars which seek to curtail statutory rights. 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 question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
