TMI Blog2013 (3) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... een that the same is applicable only for the Shipping Bills filed on or after the date of issuance of the said Circular. In this case, the 1st Respondent had filed the Bill of Entry on 17.3.2010, 21.3.2010 and 22.3.2010 respectively, admittedly, prior to the issuance of the said Circular No.36 of 2010 dated 23.9.2010. Therefore, the learned counsel for 1st Respondent cannot rely on Circular No.36 of 2010 dated 23.9.2010. In the decision of M/s.Terra Films Pvt. Ltd. Versus Commissioner of Customs [2011 (4) TMI 13 - DELHI HIGH COURT] considering the scope of Section 149 of Customs Act found that the discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house has to be though exercised judicially, it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. It is further observed therein that the request was made for conversion from one Scheme to another is a case of request for conversion and not of an amendment inasmuch as by converting from one Scheme to another, it was not only addition of certain word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n importing raw material required for the manufacture of export production viz., blades for rotor 2100 KW Model Suzlon Branch Wind Operated Electricity Generators under Advance Licence (Advance Authorisation) No.3110034801/2/03/00 dated 08.8.2008 issued by the Joint Directorate General of Foreign Trade, Pune after executing a bond with Customs Department for fulfilment of export obligation within the stipulated time. The export goods in question were in deed manufactured using exempted materials used for manufacture of export product in the above referred Advance Licence and few other items. 1st Respondent filed five Shipping Bills bearing Nos.3681452 dt. 17.3.2010; 3681453 dt. 17.03.2010; 3686416 dt. 21.3.2010; 3686417 dt. 21.03.2010 and 3687396 dt. 22.03.2010 under "Drawback and EPCG Scheme" (Scheme Code 44) for export of Wind Operated Electricity Generator Blades for rotor 2100 KW and completed the export. Later, 1st Respondent vide letter dated 05.4.2010 stated that while preparing the Shipping Bills for the above exports, the Scheme code was mistakenly selected as "44" i.e. Drawback and EPCG Scheme instead of "71" EPCG, Drawback and DEEC Scheme and requested for issuance of 'N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But it is the request for conversion of Scheme of the Shipping Bills from "Drawback EPCG" [Code No.44] to "Drawback EPCG and DEEC" [Code No.71]. It was submitted that conversion of Scheme of the Shipping Bills are to be considered in terms of Board's Circular No.4/2004 dated 16.1.2004 and Tribunal was not right in invoking Section 149 of Customs Act for conversion of the Scheme. 5. Mr.Lakshmi Kumaran, learned counsel for 1st Respondent submitted that request of 1st Respondent was not exactly falling under category of conversion of Shipping Bills from one Scheme to another; but is a case of simple clerical error and requesting addition of words "Advance Licence" along with EPCG Drawback and would not amount to making request for conversion of Shipping Bills in one export scheme to another and if it is so assumed, conversion/addition should be permitted under the provision of Section 149 of Customs Act. Drawing our attention to the Circular No.36/2010 dated 23.09.2010, learned counsel submitted that the rigour of Circular No.4/2004 dated 16.1.2004 has been superseded and it is no longer required for exporter to produce evidence for rejection as mentioned in Para 3.2 of Board's Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a later date creates difficulties and it is not advisable to encourage such conversion. 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 the exporter within one month of the denial/rejection of the benefit claimed. b. On the basis of available export documents etc., the fact of use of inputs is satisfactorily provided in the resultant export product. c. The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and DEPB Schedule as the case may be. d. On the basis of shipping bill/export documents the exporter is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Circular No.4 of 2004 dated 16.1.2004 was holding the field and the relevant Paragraph has already been extracted supra. 12. 1st Respondent imported Capital Goods (Machineries) under Export Promotion Capital Goods and Raw Materials under Duty Entitlement Certificate. For the imports made under EPCG (Concessional Duty Scheme), the exporters have to export goods for five times of CIF value of the imported goods. With regard to the goods imported under Exemption Scheme (DEEC), the importers have to manufacture the final export product out of the imported goods and export within a stipulated period. In the present case, the 1st Respondent availed benefit under both EPCG Scheme and DEEC Scheme. According to Department since the 1st Respondent availed the benefit under both Schemes, the 1st Respondent is obligated to manufacture the final product of the export goods using the raw materials imported under DEEC Scheme in the machineries imported under EPCG Scheme. If the export obligation is not fulfilled within the stipulated period the importer is liable to pay the applicable duty with interest. 13. 1st Respondent had filed all the five Shipping Bills in dispute under Drawback c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve contention does not merit acceptance. As pointed out earlier only to claim benefit under Drawback EPCG scheme and DEEC scheme, the exporter has to file DEEC declaration to the effect what are the raw materials used in the manufacture of the final product. At the time of examination of the goods materials given in the declaration will be verified. In the present case, the same was not verified since Shipping Bills were not filed under DEEC scheme. Therefore, it is not open to the 1st Respondent to contend that there was no finding by the Commissioner of Customs that the materials were not used in the manufacture of the final export product. 17. No doubt, the learned counsel appearing for the 1st Respondent placed subsequent Circular No.36 of 2010 dated 23.9.2010 to contend that Circular No.4 of 2004 dated 16.1.2004 has been superseded and the conditions imposed in the earlier Circular is diluted in the later Circular. We have perused the Circular No.36 of 2010 dated 23.9.2010. No doubt, the issue has been considered by the Board in detail and it is stated therein that conversion should be permitted in accordance with the provision of Section 149 of Customs Act, 1962 on a case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but also verification of the goods of export and their examination by the Customs was necessarily required to be done. By observing so, the Delhi High Court upheld the rejection of the request of the exporter seeking for conversion of the Shipping Bill from one Scheme to another. 19. We are in full agreement with the reasonings given by the Delhi High Court in the above said case and by following the said decision [2011 (268) E.L.T 443 (Del), we find that the 1st Respondent's claim seeking conversion is not maintainable and the same has been rightly rejected by the Commissioner of Customs. The Tribunal has not gone into any of these aspect in detail, even though it happens to be a final fact finding authority. It has simply allowed the conversion by resorting to the provision under Section 149 of Customs Act as if, it is a simple request for amendment. Therefore, we find that the order passed by the Tribunal cannot be sustained and accordingly, the same is set aside and the appeal filed by the Department is allowed. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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