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2016 (3) TMI 889 - CESTAT KOLKATA

2016 (3) TMI 889 - CESTAT KOLKATA - TMI - Seeking conversion of free shipping bills to Drawback shipping bills as per CBEC Circular No. 04/2004-CUs dt 16/01/2004 as per the provision of Sec 149 of the Customs Act 1962 - Rejected Appellant contended that after amendment under Notification No. 39/2003-Cus dt 19/6/2003 appellant became eligible for DBK with respect to exports of LPG & petroleum products exported to Nepal Oil Corporation Ltd. when exports are made through specified 'LCS' and payment .....

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on of free shipping bills to Drawback shipping bills under Sec 149 ibid, if otherwise permissible, independent of CBEC Circular dt 16/1/2004. Decided in favour of appellant by remand - Appeal No. C/612/2009 - FINAL ORDER NO. 75188/2016 - Dated:- 17-2-2016 - D M Misra, Member (J) And H K Thakur, Member (T) For the Appellant : Dr S Chakarborty, Adv For the Respondent : A Kumar, AC (AR) ORDER Per Shri H K Thakur This appeal has been filed by the appellant with respect to OIO dt 01/11/07 issued by C .....

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roducts exported to Nepal as per treaty between Govt. of India & Govt. of Nepal. That the Notification No. 208/77-Cus was amended by Notification No. 39/2003-Cus dt 19/06/2003 by inserting clause - C of Para-2 of notification No. 208/77-Cus. That by virtue of this amendment appellant became eligible to DBK for exports of LPG & Petroleum Products made to Nepal Oil Corporation Ltd, through specified land Customs stations (LCS), for which payment was received in Indian currency. That being .....

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Act 1962. That by virtue of the impugned order dt 1/11/2007 Commissioner rejected the claim of the appellant on the ground that it is beyond the ambit of Commissioner to allow conversion of free shipping bills to DBK S/B in view of CBEC Circular No. 04/2004-Cus dt 16/1/2004. 2.1 Learned Advocate made the bench go through Sec-149 of the Customs Act 1962 and argued that power to amend the document, including shipping bills, has been given under the statute. That this power can not be limited by CB .....

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(Bom.) 3. Sh. A. Kumar AC, (AR) appearing on behalf of the Revenue argued that Commissioner, Patna was bound by the CBEC Circular and has thus correctly rejected the conversion of request of the appellant Learned AR thus defended the order passed by Commissioner as Adjudicating authority. 4. Heard both sides and perused the case records. Appellant's argument is that after amendment under Notification No. 39/2003-Cus dt 19/6/2003 appellant became eligible for DBK with respect to exports of L .....

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appellant is entitled to the benefit of duty DBK against the export of petroleum Products to Nepal Oil Corporation Ltd. However in Paras-3.2 & 4 of the order he rejected appellant's request as per CBEC Circular No. 04/2004-Cus dt 16/1/2004. 4.1 It is observed that the same issue came before CESTAT Mumbai in the case of Man Industries (India) Ltd Vs. CC (EP) Mumbai (Supra) where following observations were made while allowing the appeal;- "1.6 Instructions in way of Board Circular N .....

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the exporter has been denied by DGFT/MOC or Customs due to any dispute. The same was conveyed to exporter by Assistant Commissioner/Gr. VII vide letter no. S/6-DEPB-MISC-1147/2003 dated 20-01-2004. 2.1 The request of the appellant for conversion of the Shipping Bills was made in terms of the statutory rights available to the appellant under Section 149 of the Customs Act 1962. The said section entitles the proper officer of customs to direct amendment of any document, after it has been presented .....

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d 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." It is not in dispute that the requirements of abovementioned proviso are satisfied by the appellant and consequently Commissioner ought to have allowed the request for conversion instead of "bound" by th .....

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rs of the Board. The approach adopted by the Respondent has the effect of inferring from & conferring upon the Board Circular, a status of a statute overruling the proviso to Section 149 of the Customs Act, 1962 which is impermissible. 2.2 The Commissioner has clearly overlooked only circulars which are benevolent to the assessee that are binding upon the department and not circulars which seek to curtail statutory right. This proposition is clearly laid down by the Hon'ble Supreme Court .....

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ng to such instructions........" The Supreme Court thus makes it clear that while a benevolent Circular is binding on the department and an assessee is always entitled to dispute the applicability & correctness of a Board's Circular. By application of this principle, it ought to be held that even if the appellants' case did not fall within four corners of the Board's Circulars in question, the claim was eligible for consideration independently subject to provision of Section .....

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