TMI Blog2011 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 6-4-2011 - MR. JUSTICE A.K. SIKRI, MR. JUSTICE M.L. MEHTA, JJ. Mr.Sandeep Jha, Advocate For Respondent Mr.Mukesh Anand with Mr.Jayendra, Advocates For Applicant M.L. MEHTA, J. * 1. This is an appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as the Act ) against the order of Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ) dated 11.11.2009. 2. The facts leading to the filing of the present appeal need to be mentioned in brief. The appellant is a manufacturer of c-extruded multilayer film having their factory in specified area of Himachal Pradesh and availing exemption from customs duty. It exported commodities under 7 shipping bills during the period of September 2004 to April 2005. In the shipping bills, they had mentioned about the scheme under which exports were made as DEPB/DEEC . The goods stood exported to the destination under this scheme. After a lapse of considerable period, the exporter/appellant vide its letter dated 27th January, 2006 followed by some more letters requested for permission to amend their DEEC/DEPB shipping bills into those DEEC/DEPB cum drawback scheme. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all the cases relied upon by the exporter, the Hon‟ble CESTAT allowed conversion/amendment under Section 149 only on the basis of documentary evidence which were in existence at the time goods were exported if the benefit of export promotion scheme could not be claimed and availed of by the exporter due to some bonafide omission/mistake/error that occurred at the time of filling of shipping bills and exportation of goods. In the instant case, however, no such situation exists, as is evident from the fact of the case detailed here-in-above. I therefore, find that the ratio of the decision of Hon‟ble CESTAT relied upon and cited by the exporter is not applicable in the instant case. Accordingly, I do not find it feasible to accede to the request of the exporter for amendment/conversion of the shipping bills under Section 149 of the Customs Act, 1962. 3. Against order of 6th May, 2008 of the Commissioner, exporter preferred appeal before the CESTAT which came to be dismissed vide the impugned order dated 11th November, 2009. The CESTAT while agreeing with the findings of the Commissioner, recorded the following reasons: It is to be observed that Importer/export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of time, with liberalization having been ushered in the Customs administration, clearance of goods is being permitted mostly on the basis of self-declaration made by the exporters on the shipping bills. Such self-assessment scheme necessarily casts the responsibility on the exporters to make up his mind at the time of filing shipping bills as to which export promotion incentive he likes to avail. With the introduction of the system of on-line assessment, such request for conversion at a later date creates difficulties and it is not advisable to encourage such conversion. (B) It is, therefore, clarified that conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed. As regards permitting conversion of shipping bills from one export promotion scheme to another is concerned, it is clarified that such conversion should only be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by DGFT/MOC or Customs due to any dispute. Such conversion may be permitted on merits by the Commissioner on case to case basis subject to the following conditions: a. The request for conversion is made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its the amendment to be permissible reads as under: Section 149. Amendment of documents save as otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document after it has been presented in the customs house to be amended. Provided that no amendment of a bill of entry or a shipping bill of export shall be authorised to be amended after the imported 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 at the time the goods were cleared, deposited or exported, as the case may be. 6. As per proviso of this Section 149, no amendment of a shipping bill was to be allowed after the export goods have been exported except on the basis of the documentary evidence, which was in existence at the time the goods were exported. The submission of the learned counsel for the appellant/exporter in this regard was that the exporter was in possession of all the documents at the time of export to show that it was entitled to claim under the DEPB/DECC cum drawback scheme. From the plain reading of Section 149, it may be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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