TMI Blog2017 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 149 of the Custom Act, which does not provide any limitation to make application to amend the shipping bill and therefore, the authorities are not justified in rejecting the application on the ground that the same is not within the period of three months, relying upon board Circular No. 36 of 2010. For enabling an exporter to draw the benefits of any scheme, not only physical verification of the documents would be required but also verification of the goods of export as also their examination by the Customs was necessarily required to be done. It is required to be noted that what is considered at the time of DECC, the appropriate inquiry would be limited to the extent to satisfy the authority whether raw material which was imported has been used in manufacturing final product or not. So far as Advance Authorization Scheme is concerned, the appropriate authority is required to consider after holding appropriate inquiry that the raw material which was imported has only been used in the manufacture of final product and that final product has been actually exported. It cannot be said that the respondents have committed any error and / or illegality in rejecting the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 dated 11.06.2014 and Bill of Entry No. 6443937 dated 14.08.2014. It is the case on behalf of the petitioner that as provided in the said authorization against the aforesaid quantity of 10599.950 MTs of raw sugar directly imported, the petitioner manufactured a total quantity of 10095.210 MTs of white refined sugar therefrom. It is the case on behalf of the petitioner that as provided in the Foreign Trade Policy, the petitioner was required to export white refined sugar within stipulated period of 18 months. It is the case on behalf of the petitioner that same was properly complied with by the petitioner and the aforesaid quantity of 10095.210 MTs of white refined sugar was exported under 14 different shipping bills during the period from 19.06.2014 to 19.09.2014. It is the case on behalf of the petitioner that as per the provision in the Foreign Trade Policy according to which instead of importing any particular quantity of specified goods in a Authorization, if any Authorization Holder wants to source such quantity locally, they can do so, the petitioner requested respondent no.2 for invalidation of the authorization to the extent 2650.00 MTs of raw sugar may be allowed to be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zation of their export obligation under the Advance Authorization in question and its redemption. A reminder was sent vide letters dated 27.12.2015, 16.07.2015 and 3.11.2015. That vide communication dated 11.01.2016 the Assistant Commissioner (Export) on behalf of respondent no.3 had vide his letter dated 11.01.2016 informed the petitioners that their request for amendment has not been considered by the respondent no.3 on the ground that no conversion of shipping bill from one scheme to another scheme beyond three years from the date of Let Export Order (LEO), which is the requirement as per the Board Circular No. 36 of 2010. It is the case on behalf of the petitioner that thereafter vide communication dated 08.06.2016 the petitioner requested to reconsider its earlier decision by submitting that circular no. 36 of 2010 shall not be applicable in the present case and therefore, it was requested to amend the shipping bill as per Section 149 of the Customs Act. That once again request of the petitioner has been turned down vide communication dated 01.08.2016. Hence, present petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are overwhelming documentary evidence that the goods were imported / indigenously procured under the Advance Authorization, subsequently finished goods were manufactured and exported out of India. It is submitted that therefore, the impugned decision rejecting the application of the petitioner to amend the shipping bill deserves to be quashed and set aside. Making above submission and relying upon the decision of the Bombay High Court in the case of Commissioner of Customs vs. Man Industries (I) Ltd reported in 2007(216) ELT 15 (Bom) which has been confirmed by the Hon ble Supreme Court subsequently, it is requested to allow the present petition and grant the relief as prayed for. 5.0. Present petition is vehemently opposed by Shri Jaymin Gandhi, learned advocate for the respondent. 5.1. It is vehemently submitted by Shri Gandhi, learned advocate for the respondent that in fact this is a case of conversion from one scheme to another scheme and therefore, Circular No. 36 of 2010 shall be applicable and Section 149 of the Customs Act shall not be applicable / attracted. It is submitted that therefore, when it has been found that application was submitted before the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of the Delhi High Court in the case of Terra Films Pvt Ltd (supra), Madras High Court has held that such goods would not fall under Section 149 of the Customs Act, but shall be governed by Board Circular No. 36 of 2010. In the case of Terra Films Pvt Ltd (supra), the Delhi High Court has considered the scope of Section 149 of the Customs Act and found that discretion vested in the proper officer to permit the amendment in any document after same has been presented in the Customs House has to be though exercised judiciously but 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. In the said decision, it is further observed that the request made for conversion from one scheme to another scheme is a case of request for conversion and not of amendment inasmuch as by converting from one scheme to another scheme, it was not only addition of word cum duty drawback but change entire status and character of the document. The Delhi High Court has thereafter observed that proper officer may not be in possession of the documents sought to be amended after lapse of such a l ..... 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