TMI Blog2009 (11) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... M(BR)(PB) - Dated:- 11-11-2009 - Shri M. Veeraiyan, J. Shri Sandeep Jha, Advocate, for the Appellant. Shri S.N. Srivastava, SDR, for the Respondent. ORDER This is an appeal against the order of the Commissioner No. 33/2008, dated 6th May, 2008 which was itself passed in de novo proceedings in pursuance of CESTAT Final Order No. 1775/07-SM(BR), dated 1-11-2007. 2. Heard both sides. 3. The relevant facts, in brief, are that the appellant is a manufacturer of Co-extruded Multilayer Film having their factory in specified area of Himachal Pradesh and availing exemption from excise duty. They have exported the commodity under 7 shipping bills as per the details given below : Shipping Bill No. Date Desc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awback at the time of export. Commissioner ought to have allowed amendment in terms of Section 149 of the Customs Act, 1962, inasmuch as the export of the products is not in dispute. If the permission is granted by amending the shipping bills for including the benefit under drawback, the fixation of brand rate will be based on documents like purchase invoices, records relating to manufacturing and that no prejudice would be caused to the department. He submits that as exporter they should not be allowed to suffer for failure to claim the benefit inadvertently at the time of export. He also relies on the decisions of the Tribunal by which conversion of such shipping bills were permitted particularly the decision in the case of Man Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence a the time the goods were cleared, deposited or exported, as the case may be . It is to be observed that importer/exporter cannot claim amendment as a matter of right. The words used namely, proper officer may , in his discretion, authorise any document to be amended indicate that the power to be exercised is only discretionary power. Commissioner has refused to exercise the discretion in favour of the appellant, he has relied on the guidelines prescribed by the Board vide Circular No. 4/2004, dated 16-1-2004 issued vide F. No. 609/176/02/DBK. He has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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