9911796707
TMI Blog2015 (12) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants exported 6 consignments from Visakhapatnam Sea Port and two consignments from Kakinada Sea Port. The appellants shipped 26500 MTS of Calcined Alumina vide Shipping Bill No. 8101548, dated 17-6-2008 for a FOB value of Rs. 45,74,06,250/-. It is the case of the appellant that due to clerical error on the part of the appellant's CHA, the shipping bill dated 17-6-2008 was filed as a free shipping bill instead of a DEPB scheme shipping bill. On realizing the same, the appellants vide letter dated 24-12-2008 informed the matter to the Assistant Commissioner. Again on 19-2-2009, they addressed another letter to the Additional Commissioner for conversion of the free shipping bill to DEPB shipping bill. The appellant's request for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... converting the free shipping bill dated 17-6-2008 into DEPB shipping bill was rejected on the following grounds :- a. the request for conversion has been filed around 8 months after filing of Export General Manifest and therefore is time barred; b. the delay in filing the request for conversion reflects the absence of intention on the part of the appellant to claim the DEPB benefit; c. amendment of shipping bill under Section 149 of the Customs Act, 1962 cannot be claimed as a right; and d. as per Board's Circular No. 4/2004-Cus., dated 16-1-2004, the conversion of free shipping bill into DEPB shipping bills is not allowed. 3. Aggrieved by the above Order-in-Original, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down any time limit for amendment of shipping bill. 5. The learned AR reiterated the findings in the impugned order and argued that as per Board's Circular No. 4/4/2004-Cus., dated 16-1-2004, conversion of free shipping bills into advanced licence/DEPB/DFRC shipping bills is not allowed. As regards permitting conversion of shipping bills from one export promotion scheme to another concerned, the circular clarifies that such conversion should only be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by the DGFT/MOC or Customs due to any dispute. The circular also lays down a condition that the request for conversion has to be made by the exporter within one month of the denial/rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30-7-2008 is filed by appellants under EPCG and DEPB scheme and the benefit was availed. The Shipping Bill No. 8101548, dated 17-6-2008 which is subject matter of the present dispute was filed as a free shipping bill and DEPB benefit could not be availed. When the appellants claimed DEPB benefit for part of the quantity of 772.724 MTs shown in ARE-I, it can be safely inferred that the non-declaration of the DEPB benefit in the Shipping Bill No. 810548, dated 17-6-2008 was only due to a clerical error. So the observation made by the Commissioner that the appellants did not declare the DEPB benefit because they did not intent to avail DEPB benefit cannot be accepted. 7. Section 149 of the Customs Act provides for carrying out an ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai [2014 (314) E.L.T. 161 (Tri.-Mumbai)] b. Kiran Pondy Chems Ltd. v. CC, Chennai [2006 (203) E.L.T. 588 (Tri.-Chennai)] c. Man Industries (I) Ltd. v. CC(EP), Mumbai [2006 (202) E.L.T. 433 (Tri.-Mumbai)] 8. Kiran Pondy Chems Ltd. (supra), the Tribunal has observed as under : - 5. In the instant case, as we have already noted, the exports in question were made under cover of Shipping Bills and allied documents including ARE-1s. We have seen specimens of these ARE-1s. Part "A" of ARE-1 is a certification by the Central Excise Range Superintendent regarding clearance of the goods for export. Part "B" of this document is a certification by the proper officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequently Commissioner ought to have allowed the request for conversion in stead of "bound" by the terms of a Board circular which laid down certain situations, only in which conversion was permitted. That the appellants case was not specifically covered by one of the situations contemplated in the Board's circular cannot deny the appellants statutory right, to seek any amendment & same is lost. The statutory right, as also the statutory obligation of the proper officer to amend a document after its presentation in the Customs House cannot be curtailed or set to naught by circulars 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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