TMI Blog2013 (10) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ined only by a Superintendent and the very fact that the examination was conducted by the inspector would show that the department had treated it as a free export without claiming any benefits and under these circumstances, the conversion cannot be allowed - On going through the records I find that during the relevant time instructions required that the Superintendent to conduct examination - Without valid reasons it may not be proper to reject the observation of the Commissioner that the examination by Superintendent was very relevant and necessary in this case. The appellants were engaged in the business of export of electronic goods including EDC terminals also known as Point-of-Sale terminals – Held that:- If the appellants were to mention all the relevant details, the fact that inspector only examined the consignment and therefore appellant cannot be denied the-benefit could have been a view possible - Unfortunately for the appellant neither in the shipping bill nor in ARE-2 have declared the Advance Licence No. or the fact that exports were in fulfillment of obligations caused by the DEEC Licence - Under these circumstances the examination also becomes a relevant factor - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose, a B1 bond bearing No. 44/2006 was executed by the appellants undertaking to export the goods cleared from the supporting manufacturer's premises and furnish the proof of export to the jurisdictional Central Excise officer within the specified period. 1.6. As and when the consignment of EDC terminals of a particular quantity was ready for dispatch at the supporting manufacturer's premises, the appellants applied for and obtained the necessary CT-1 certificate from the jurisdictional Central Excise officer and furnished the same to the supporting manufacturer to enable clearance of the finished goods without payment of duty for the purposes of export. The appellants, as also the supporting manufacturer, jointly filed ARE-2 before the Superintendent of Central Excise, Electronic City Range, Kendriya Sadan, Bangalore intimating the said officer, the proposed export of the EDC terminal and requested for examination and factory sealing of the consignment at the supporting manufacturer's factory premises. 1.7. Following the same procedure several exports were made under 15 shipping bills during the period from 26.05.2006 to 22.01.2007. On 03.09.2007 appellant made a request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i are contrary to each other and the circular issued by the Board in 2010 was not brought to the notice of the Hon'ble High Court of Delhi when the decision in the case of Terra Films Pvt. Ltd. was rendered. 5. Under these Circumstances, I proceed to treat the case as one of amendment only even while making it clear that in view of the lack of clarity on the issue I am not going to consider this issue in detail at this stage since I feel that it is not required for the case on hand. Section 149 of Customs Act reads as under: "Amendment of documents - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the custom house to be amended: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized 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." From the above Section it is quite clear that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was done by the inspector who did not draw the sample also. 7. In the above background, the Commissioner has come to the conclusion that in this case the very fact that the examination was conducted by the inspector would show that the department treated the consignment as one of export without claiming any incentive. He has also observed that as per the existing instruction, the consignment should have been examined only by a Superintendent and the very fact that the examination was conducted by the inspector would show that the department had treated it as a free export without claiming any benefits and under these circumstances, the conversion cannot be allowed. On going through the records I find that during the relevant time instructions required that the Superintendent to conduct examination. In fact the learned advocate produces an instruction issued by the Board in 1998 vide Circular No. 415/48/98-CX. dated 28.08.1998. According to him this circular supports the case of the appellant. According to this circular, when a Superintendent of Central Excise is unable to undertake the work of examination and sealing, he can entrust this work to an inspector. The relevant pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment" inasmuch by converting from one scheme to another, it was not only addition of word 'cum' duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the 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 as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived at by the Commissioner has been rightly upheld by the CESTAT". 7.2. Hon'ble High Court also observed, as can be seen from para extracted, that the discretion to be exercised judiciously was qualified with the proviso that the amendment could be allowed only if it was based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue involved was the adequacy or otherwise of an examination of the consignment by an inspector which was required to be done by a Superintendent. In the absence of any specific submission and in the absence of certificate issued, those decisions cannot be applied. In my view there are no decisions in favour of the appellant. 9. Further I also would like to observe here that if the appellants were to mention all the relevant details, the fact that inspector only examined the consignment and therefore appellant cannot be denied the-benefit could have been a view possible. Unfortunately for the appellant neither in the shipping bill nor in ARE-2 have declared the Advance Licence No. or the fact that exports were in fulfillment of obligations caused by the DEEC Licence. Under these circumstances the examination also becomes a relevant factor. Further the drawal sample is also a relevant factor. 10. It was also submitted by the learned AR that there was considerable delay in filing the application for conversion varying from 8 months to 14 months. I do not want to make any observation on this issue at this stage since I have already taken a view on the merits of the case against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
