TMI Blog2008 (8) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... the point as to whether the conditions (b) to (e) of the circular dt. 16-1-04 are satisfied or not have been given. The impugned order is, therefore, set aside and the matter is remanded to the Commissioner for de novo consideration - appeal allowed by way of remand. - C/399/2008 - C/305/2008(PB), - Dated:- 12-8-2008 - S/Shri S.S. Kang, Rakesh Kumar, JJ. REPRESENTED BY : Shri Bipin Garg, Advocate, for the Appellant. Shri R.K. Verma, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The appellants are manufacturer and regular exporter of Nylon Filament Yarn. During Jan 07 to April 07 period, they exported 12 consignments of Nylon Filament Yarn under advance licence scheme. They had already been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard both the sides. 2.1 Shri Bipin Garg, Advocate, ld. Counsel on behalf of the appellant made the following submissions : (1) The Appellant had procured the advance licence dt. 22-12-06 and made exports during Jan 07 to April 07 period and the export obligation has been completed. But due to unavoidable circumstances, the Appellant had to close their factory on 7-6-07 and were unable to utilize the material, if imported against the advance licence. Under the circumstances, the Appellant had no choice but to get the scheme converted into DEEC scheme. The Ministry of Commerce has already accepted the surrender of the advance licence. (2) Before rejecting the request of the Appellant for conversion, the respondent/Commissioner neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded that in this case, the benefit under advance licence scheme has not been refused to the appellant by the DGFT and therefore, their request for conversion of DEEC S/Bills into DEPB S/Bills is not valid and that the inability of the appellant to use the advance licence issued to them is not sufficient ground for conversion of the shipping bills from advance licence scheme to DEPB scheme. 3. We have given careful consideration to the submissions from both the sides. In terms of the Board s circular No.4/04-Cus dt. 16-1-04, conversion of shipping bills from one export promotion scheme to another can be allowed where the benefit of an export promotion scheme has been denied by the DGFT/MOC or Customs due to any dispute, subject to furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be . 3.2 From the provisions of Section 149, it is clear that when amendment to shipping bill after export of the goods is sought, the same is governed by the proviso to Section 149 and if the requirements of the proviso of Section 149 are satisfied, the amendment has to be allowed. Therefore, for amendment of shipping bill for conversion from one EP scheme to another, what has to be seen is as to whether the conditions (b) to (e) of the Board s circular dt. 16-1-04, which are in accordance with the provisions of Section 149, are satisfied and if these conditions are satisfied, the conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek any amendment. The statutory right, as also the statutory obligation of the proper officer to amend a document after its presentation in the customs house cannot be curtailed or set at nought by circulars of the Board. The approach adopted by the Respondent has the effect of conferring upon the Board s circular, a status of a statute over-ruling the proviso to Section 149 of the Customs Act, 1962, which is impermissible . 3.2.1 Tribunal in the case of Sologuard Medical Devices Pvt. Ltd. v. CC (Sea Port), Chennai reported in 2007 (216) E.L.T. 62 has observed that - Circular No. 4/04 dt. 6-1-04 has debarred conversion of free shipping bills into an advance licence shipping bill as it creates difficulties in the wake of online assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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