TMI Blog2009 (10) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... to exempt the exporter from making such declarations. It would follow that the proviso to Rule 12(1)(a) of the Drawback Rules is also an enabling provision for the Commissioner of Customs to permit conversion of free shipping bills to drawback shipping bills. In the result, the Commissioner can exercise this power under Section 149 of the Customs Act read with the proviso to Rule 12(1)(a) of the Drawback Rules - appeal allowed by way of remand. - C/1106/2008 - A/645/2009-WZB/C-IV/SMB - Dated:- 30-10-2009 - Shri P.G. Chacko, J. Shri Bharat Raichandani, Advocate, for the Appellant. Shri B.P. Pareira, JDR, for the Respondent. ORDER This appeal is against the Commissioner s decision not to allow conversion of free shipping bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of negation of natural justice. It is submitted that no opportunity of being heard was given to the applicant by the Commissioner. The appellant relies on certain clarification of the CBEC contained in para 3.1 of Circular No. 4/2004-Cus., dated 16-1-2004. They also submit that, under the provisions of Rule 12(1)(a) of the Drawback Rules, the Commissioner has power to permit conversion of a free shipping bill to a drawback shipping bill. The appellant has also claimed support from certain decisions of the Tribunal, including Kiran Pondy Chems Ltd. v. CC, Chennai - 2006 (203) E.L.T. 588 (Tri.-Chennai) = 2006-TIOL-1388-CESTAT-Mad. Today it is submitted by the learned counsel that the view taken in Kiran Pondy Chems Ltd. has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bs. It indicates that Board s Circular No. 4/2004 dated 16-1-2004 prohibited such conversion. The appellants grievance is essentially against the Commissioner s stand as communicated to them. What was communicated to the party was the Commissioner s decision not to permit conversion of the Shipping Bills and the same affected the party adversely. Hence we overrule ld. SDR s objection as to maintainability of the appeal. 4. Neither side has referred to a vital provision of the Customs Act, which is Section 149 which reads as under - Amendment of documents.- Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the instant case was not noticed by the Commissioner either, nor did it occur to him that he was expected to discharge a quasi judicial function while dealing with the party s application. Hence we have no hesitation in setting aside the impugned proceedings. Since the impugned proceedings are also in violation of the principles of natural justice, we have to remand the case to ld. Commissioner of Customs for fresh decision. Accordingly, the impugned proceedings are set aside and ld. Commissioner is directed to reconsider the application of the appellants for conversion of the subject Shipping Bills, in accordance with law and in terms of this order, after giving the party a reasonable opportunity of being heard. The view expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities : Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause According to the above provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner can exercise this power under Section 149 of the Customs Act read with the proviso to Rule 12(1)(a) of the Drawback Rules. In this connection, I note that Section 149 does not prescribe any period of limitation. The decision recorded by the Commissioner, in the instant case, on the second issue framed by him is not sustainable in law. 6. In the result, after setting aside the Commissioner s decision, I allow this appeal by way of remand, directing him to take fresh decision and pass a speaking order on the convertibility of free shipping bills to drawback shipping bills, after giving the party a reasonable opportunity of being heard, and having regard to the case law cited herein. It is made clear that this order does not consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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