TMI Blog2017 (7) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... ing bills and should be allowed under Section 149 of the Customs Act, 1962 which is contrary to the Circular No.4/2004 dated 16.1.2004 issued by the Board and was in force during the relevant time. The request for conversion of free shipping bills to DEEC (Advance Licence) Scheme cannot be considered, as the said scheme is strictly on actual user basis exemption and no transferability is allowed pre or post export. Hence, strict interpretation need to be applied. Appeal dismissed - decided against appellant. - Customs Appeal No.277 of 2010-SM - A/11488/2017 - Dated:- 28-7-2017 - Dr. D. M. Misra, Member (Judicial) Shri Paritosh Gupta, Advocate for the appellants Shri S. N. Gohil, A.R. for the Respondent-Revenue ORDER Per: Dr. D.M. Misra This is an appeal filed against the Order-in-Appeal No.46/2010/CUS/COMMR(A)/AHD dated 30.4.2010 passed by the Commissioner (Appeals), Customs, Ahmedabad. 2. By a letter dated 27.11.2009, the appellant had requested for conversion/amendement of free shipping bill No.1171741 dated 22.8.2005 into DEEC shipping bill (Advance Licence Scheme) under Sec.149 of the Customs Act, 1962 where under they have exported Purif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iran Pandy Chems Ltd. - 2006 (203) ELT 588; (iv) Mahindra Mahindra Ltd. - 2007 (215) ELT 385; (v) Sologuard Medical Devices Pvt. Ltd. - 2007 (216) ELT 62; (vi) Sterlite Optical Technologies - 2008 (226) ELT 69; and (vii) Yamika Fabrics Pvt. Ltd. - 2009 (233) ELT 237. 5. Per contra, the ld. A.R. for the Revenue has submitted that even though the export was effected in the year 2005 by filing free shipping bill No.1171741 dated 22.8.2005, the request for conversion/amendment to DEEC(Advance Licence Scheme) shipping bill was made after lapse of four years i.e. in the year 2009. Further, he has submitted that while allowing export of the goods mentioned against the said shipping bill, the consignment was not opened for physical examination by the Customs authorities, thus it was difficult to correlate with the imported items mentioned against advance licence No.0810046605/02/03/00 dated 15.3.2005 at serial No.1, 5, 4 of the debit entry made in said advance licence. He has submitted that pump was imported on 27.9.2005, EDI Module was imported on 7.10.05, and SS Pipes were imported on 10.11.06 and 7.12.06, whereas the goods were exported on 22.8.05, much prior to the said import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported items as there was no physical examination of the goods, hence, the conversion of free shipping bills into DEEC (Advance Licence) shipping bills cannot be accepted. I find that the principle relating to allowing conversion of free shipping bill into DEEC, DFRC etc. shipping bill and from one promotion scheme to another promotion scheme in the context of Sec.149 of the Customs Act Customs,1962 has been laid down by the Hon'ble Delhi High Court in the case of Terra Films Pvt. Ltd. (supra). Their Lordships after considering the Board's Circular No.4/2004 dated 16.1.2004, observed that amendment of the shipping bill after the goods have been exported, cannot be considered as mere amendment, when the request is for conversion of free shipping bills into DEEC or for conversion of shipping bills from one export scheme to another. Their Lordship observed as follows: 4. We have heard the learned counsel for the exporter and learned counsel for the Department and perused the record. From the facts as noted above, it is seen to be admitted case that it was after a considerable period of time, i.e., more than one year after the export of goods, the exporter filed appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. On the basis of shipping bill/export documents the exporter is fulfilling all conditions of the Export Promotion Scheme into which he is seeking conversion. e. The exporter has not availed benefit for the export promotion Scheme under which the goods were exported and no fraud/misdeclaration/manipulation/investigation is initiated against him in respect of such exports. 5. From the above, it may be seen that as per Clause B of the circular that the conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed in routine. As regards permitting conversion of shipping bills from one export promotion scheme to another, this clause envisages that such conversion to be allowed only where the benefit of export promotion scheme claimed by the exporter has been denied by DGFT/MOC or Customs due to any dispute. However, in such a case, conversion may be permitted by the Commissioner on case-to-case basis, subject to conditions enumerated in sub-clauses (a) to (e). Even under Clause A, the request for conversion from one scheme to another was not to be done ordinarily in routine. It was primarily for the reason that such conversion at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were exported. The Commissioner in the remand case has rightly observed that the present case in fact relates to the request for conversion of shipping bills from one export promotion scheme into another and was not merely of an amendment in the shipping bill. The request was made for conversion from one scheme to another after the lapse of long period of more than one year. It was a case of request for conversion and not of amendment inasmuch by converting from one scheme to another, it was not only addition of word cum duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue was considered by the Division Bench of Delhi High Court in the matter of M/s. Terra Films Pvt. Ltd. v. Commissioner of Customs [2011 (268) E.L.T. 443 (Del.)] . In the above decision, the Delhi High Court has considered the scope of Section 149 of Customs Act and found that the discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house has to be though exercised judicially, 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. It is further observed therein that the request was made for conversion from one Scheme to another is a case of request for conversion and not of an amendment inasmuch as by converting from one Scheme to another, it was not only addition of certain word, but change of entire status and character of the documents. Thus, the Delhi High Court observed that the Proper Officer may not be in a possession of the documents sought to be amended particularly, when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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