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2017 (2) TMI 50 - GUJARAT HIGH COURT

2017 (2) TMI 50 - GUJARAT HIGH COURT - TMI - Conversion of shipping bill from duty drawback scheme to Advance Authorization Scheme - export of white refined sugar / raw sugar - conversion of shipping bill from one scheme to another scheme beyond three months from the date of Let Export Order (LEO) - amendment in the shipping bill to correct the mistake - It is submitted that at the time of execution of goods materials given in declaration will be verified. It is submitted that in the present cas .....

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he case on behalf of the petitioner that subsequently when they requested to amend the bill of entry, the case would fall under 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 schem .....

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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 application of the petitioner considering the Board Circular No. 36 of 2010 - petition dismissed. - SPECIAL CIVIL APPLICATION NO. 17991 of 2016 - Dated:- 9-1-2017 - M .....

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y out the amendment in Shipping Bill No. 3913191 dated 17.07.2014 to the effect that the said shipping bill was filed under the Advance Authorization No.0510383348 dated 01.04.2014. 2.0. The facts leading to the present Special Civil Application so pleaded by the petitioner in nutshell are as under: 2.1. That the petitioner no.2 herein M/s. Uniworld Sugars Private Limited, is a sugar refinery located at survey no. 145, village Varsamedi, Tal: Anjar, Dist. Kutch. That the petitioner no.1 is the D .....

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ssued to the petitioner no.2 by the Additional Director General of Foreign Trade, Central Licensing Area, New Delhi. That under the said license, the petitioner no.2 was permitted to import 13249.950 MTs of raw sugar having cost insurance and freight (CIF) value of ₹ 35,73,52,500/for manufacture and export of 12619.00 MTs of white refined sugar having a Free On Board (FOB) value of ₹ 41,09,55,375/within a period of 18 months from the date import. It is the case on behalf of the petit .....

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e 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 o .....

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re 2650.00 Mts of raw sugar from Sanjivani Sahkari Sakhar Karkhana Limited. It is the case on behalf of the petitioner that subsequently petitioner entered into agreement with the aforesaid Sugar Mill at Maharashtra for supply of 2650.00 MTs of raw sugar under Advance Authorization. It is the case on behalf of the petitioner that after sourcing the aforesaid raw sugar domestically, the same was refined and 2516.530 MTs of white refined sugar manufactured out of the said domestically procured qua .....

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ly procured raw sugar, the petitioner had punched drawback in the shipping bill. It is the case of the petitioner that as a result of the same, though the exports were under advance authorization, as far as 2516.530 MTs are concerned, the shipping bill showed that the exports were under drawback scheme. 2.2. It is the case on behalf of the petitioner that as it was electronically generated shipping bill and the entire system is online, automatically amount of drawback aggregating to ₹ 9,18 .....

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ched and therefore, the petitioner vide letter dated 30.12.2014 requested the Custom Authority at Kandla to amend the said shipping bill from drawback scheme to Advance Authorization scheme to enable them to take up the matter with the licensing authorities i.e. respondent no.2 herein for realization 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 .....

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cation 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 the af .....

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and. 4.1. It is further submitted by Shri Trivedi, learned advocate for the petitioner that in the present case it was case of amendment in the shipping bill to correct the mistake and therefore, Section 149 of the Customs Act shall be attracted, which does not provide any time limit for amending the shipping bill. It is submitted that therefore, the impugned communication / decision rejecting the application of the petitioner to amend the shipping bill on the ground that the same is made beyond .....

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ned the drawback amount which was credited to the account of the petitioner. It is submitted that therefore, considering Section 149 of the Customs Act, respondent ought to have permitted the petitioner to amend the shipping bill, more particularly, when the petitioner had as such export the entire quantity of 2650 MTs of sugar. 4.3. It is further submitted by Shri Trivedi, learned advocate for the petitioner that in the case of amendment of shipping bill where export goods have been exported th .....

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ation, 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 req .....

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when it has been found that application was submitted before the period of three months, authority is justified in rejecting the said application. 5.2. It is submitted that conversion from one scheme to another scheme will be governed by the concerned Board Circular No. 36 of 2010. In support of his above submission, he has heavily relied upon the decision of the Division Bench of the Madras High Court in the case of Commissioner of Customs (SeaportExport), Chennai vs. Suzlon Energy Ltd reported .....

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EC declaration to the effect that what are the raw materials used in manufacture of final product. It is submitted that at the time of execution of goods materials given in declaration will be verified. It is submitted that in the present case it was not verified since shipping bill was not filed under DEEC scheme and now the verification is not possible as the materials are not available. Making above submissions and relying upon the above decisions, it is requested to dismiss the present petit .....

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hich 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. Identical question came to be considered by the Division Bench of the Madras High Court in the case of Suzlon Energy Ltd (supra). Relying upon considering the decision of the Division Bench of the Delhi High Court in the cas .....

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t 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 d .....

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