TMI Blog2014 (8) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... onversion needs to be allowed - appellant s exports are not in any dispute as regards description, quality, quantity, value, BRC etc., having no import against DFIA the substantial benefit on such exports now available need not be denied - Following decision of Diamond Engg. (Chennai) P. Ltd vs CC [2013 (3) TMI 46 - CESTAT CHENNAI] - Decided in favour of assessee. - Appeal No.C/12375/2014-SM - Order No.A/11457/2014 - Dated:- 1-8-2014 - MR.M.V. RAVINDRAN, J. For the Appellant : Shri P.P. Jadeja, Consultant For the Respondent : Shri S.K. Mall, Addl. Commissioner (AR) JUDGEMENT Per: M.V. Ravindran; 1. The appellant M/s V.R.A. COTTON MILLS PVT LTD, New Delhi 110048 has filed this appeal against the Order by commissioner of Customs(Prev), Jamnagar wherein ld commissioner has rejected Appellants request filed on 20-07-2013 for conversion of Shipping Bill from Duty Free Import Authorisation [DFIA] to Drawback scheme on the basis of a CBEC Circular No. 36/2010-Cus., dated 23-9-2010 which has provided one of the condition in para 3(a) that request for such conversion is to be made by exporter within three months from the date of the Let Export Order (LEO). 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory had analysed all specific consignments which were exported; that such Test Analysis reports indicate that the goods were Indian Raw Cotton Shankar-6 of CTH 5201 . Perusal of the analytical certificate given by M/s Cotton Association of India co-relate goods with the Shipping Bills, wherein the description was given as Indian Raw Cotton Shankar-6 of CTH 5201. iv) There can be no dispute to certificate by M/s Cotton Association of India who are one of the Government of Indias recommended and authorized analytical laboratories. There is no reason why the benefit of said Test reports should not be extended to cover the case of the appellant in seeking conversion of DFIA Shipping Bills into Drawback Shipping Bills, when there is a unimpeachable evidence of export of the Indian Raw Cotton of CTH 5201. v) It is also submitted that Hon'ble High Court of Mumbai in the case of Repro India Ltd - 2009 (235) ELT 614 (Bom.) has specifically laid down in Para 8 which read that the intentions of the Government is not to export taxes but only to export the goods. In the case in hand, if the duty drawback is not allowed to appellant, the appellant is perforce required to export th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the rules. In fact Section 149 of Customs Act, 1962 clearly permits amendment of shipping bill. The section is reproduced below: Section 149: 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. xi) It may be seen from the section reproduced above that amendment of shipping bill can be permitted even after the goods have left the country if the basis for amendment is documentary evidence. xii) It has been claimed by the appellants that documentary evidence is available to show the necessary details required for the purpose of considering drawback. The Commissioner has failed to take note of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 149 of Customs Act 1962 and argued that Section 149 cannot be interpreted to hold that an Appellant can file application for conversion of the Shipping Bills at any point of time. He would submit that the adjudicating authority has correctly come to the conclusion that the appellant herein had not justified the conversion when Appellant has submitted request after 3 months of LEO. He also argued that the appellant having filed Shipping Bills with claim of DFIA for export benefit, exports were allowed by the Department as claimed. The appellant has not filed shipping Bills under Drawback scheme at the time of export and hence they are not eligible for such a request made for conversion of shipping Bill from one scheme to other scheme after 3 months of LEO. He has also argued that although Section 149 of Customs Act 1962 provides for amendment of documents, it does not envisage conversion of Shipping Bill from one export promotion scheme to the other. He relied upon decision of in case of Commr. of Cus. (Seaport-Export), Chennai Vs Suzlon Energy Ltd. Reported in 2013 (293) E.L.T. 3 (Mad.). 5. Hearing submissions made at length by both sides and perusing relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no imports made against exports and allows assessee to approach customs for conversion of Shipping Bill under Drawback scheme, for which no time limitation is provided by DGFT. 8.2 I find that Rule 12(1)(a) of Drawback Rules, require an exporter to declare on the Shipping Bill, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to Drawback, and if so, at what rate or rates and make a declaration on the relevant Shipping Bill that a claim for Drawback is being made and in respect of duties paid on containers packing materials service tax etc. no separate claim for rebate of duty has been made. The Commissioner is empowered to allow Drawback on Shipping Bills which may not contain any of these details. The provisions of Rule 12(1) of Customs Central Excise Duties Drawback Rules, 1995 (Drawback Rules) and also proviso empowers the Commissioner to condone non-observance of provisions of Rule 12 and allow Drawback. This is nothing but an amendment or conversion of the Shipping Bill filed. The circular issued by the Board goes beyond the Rules. In fact Section 149 of Customs Act 1962 clearly permits amendment of Shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 in terms of Para 4.28(e) of HBP Vol-I 2009-14 vide their communication dt.10.07.2013. Thus, in such facts, appellant could have applied for conversion only after getting cancellation of the said DFIA. The appellant applied for such conversion immediately on 20-07-2013, which is within 10 days of such cancellation of DFIA by DGFT. 8.5 I also find that Hon'ble High Court of Mumbai in the case of Repro India Ltd 2009 (235) ELT 614 (Bom.) has specifically laid down in Para 8 which read that the intentions of the Government is not to export taxes but only to export the goods. In the case in hand, if the duty drawback is not allowed to the appellant, the appellant is perforce required to export the taxes, which gets included in the FOB value. In my view, this being not the intention, conversion of Shipping Bills from DFIA to Drawback Scheme needs to be allowed. 8.6 The provisions of Para 4.28(e) of HBP Vol-I 2009-14, Rule 12 of Customs, Central Excise Duties And Service Tax Drawback Rules and section 149 of the Customs Act 1962 has not specifically prescribed any such time limitation of 3 months for applying for the conversion of Shipping Bill. 8.7 I find that in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court has also allowed conversion of Shipping Bill from Free scheme to Drawback scheme considering exports made, Rule 12(1) of Drawback Rules and section 149 of the Customs Act 1962. 9. Ld.Departmental Representative s reliance on the judgment of Hon'ble High Court in the case of Commr. Of Cus. (Seaport-Export), Chennai Vs Suzlon Energy Ltd. Reported in 2013 (293) E.L.T. 3 (Mad.) may not carry the case of the Revenue any further for the reason that in the said case, conversion was sought from one export benefit scheme into another after importing the goods under DEEC EPCG and conversion of Shipping Bills. I find that the Hon ble High Court have perused the Circular No. 36 of 2010, dated 23-9-2010 and observed in Para 17 as under :- 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 to case basis on merits provided the Commissioner of Customs is satisfied on the basis of documentary evidence which was in existence at the time the goods were exported and that the goods were eligible for the export pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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