TMI Blog2015 (6) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... r considering the case of amendment on merits - amendment in shipping bills allowed - appeal dismissed - decided against Revenue. - C/85509/13 - A/89185-89186/17/SMB - Dated:- 18-6-2015 - Shri Anil Choudhary, Member (Judicial) Shri M. K. Sarangi, Dy. Commissioner (AR) for Appellant None (Request for decision on merits) for Respondent ORDER Per: Shri Anil Choudhary The Revenue is in appeal against Order-in-Original CAO No.52/2012-13/CAC/CC(E)/YG/ Gr. VII dated 27.9.2012 passed by the Commissioner of Customs (Export), Mumbai, whereby the free shipping bills filed by the respondent were allowed to be converted for considering grant of drawback. 2. The respondent is a fabricator engaged in building Bus bodies on imported chassis on job-work basis. The chassis were supplied to the respondent free of cost from China in SKD condition for making the bus body. After building the body on the chassis, the respondent exported the buses. Though the chassis were imported without payment of duty in terms of Notification No.32/97-Cus dated 1.4.1997, the respondent were procuring the raw materials, both duty paid as well as non-duty paid. Earlier, the exporters app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, further because the brand rate was earlier rejected but sanctioned in case of impugned shipping bills. 2.2 Being aggrieved, the Revenue had preferred appeal before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court was pleased to set aside the order of the Tribunal vide its judgment dated 23.9.2009 considering that Circular No.4/2004 dated 16.4.2004 would be relevant and has not been considered by the Tribunal. Accordingly, the matter was remanded to decide the matter afresh and also to consider Circular No.4/2004 dated 16.4.2004. Thereafter, this Tribunal after hearing the appeal afresh vide final order dated 28.9.2011 set aside the impugned order and remanded the matter to original adjudicating authority for re-adjudication after allowing the appellant reasonable opportunity of hearing. This Tribunal also observed in the said order that the respondent-exporter did not bring to the knowledge of the adjudicating authority that the drawback claim has already been sanctioned by the Jurisdictional Commissioner of Tiruchirapalli. Therefore, the matter needs re-examination at the end of the Commissioner of Customs (EP), Mumbai for fresh adjudication in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the jurisdictional Commissioner of Central Excise. 2.5 The learned Commissioner further referred Rule 6 7 of the Drawback Rules, 1995, which provides that the application for fixation of brand rate of drawback must be filed within 60 days of the LEO on the first export consignment/shipping bill. The learned Commissioner further found that as per the scheme, the applications for brand rate fixation have been filed after the export. It was further observed that the provisions regarding conversion do not envisage any situation where the conversion from free shipping bill to brand rate drawback shipping bill would arise. In the instant case, brand rate of drawback was fixed by the Commissionerate, without insisting on conversion of shipping bills into drawback shipping bills. Taking into consideration that respondent had filed and application for fixation of drawback, much before the first export took place and in the fact that the respondents were not asked by the Trichy Commissionerate to submit copies of drawback shipping bills. Accordingly, appreciating amended proviso of Rule 12(1)(a) wherein the proviso reads as follows:- Provided that if the Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree shipping bills can be allowed to convert as drawback shipping bills when the Commissioner is satisfied that the reason was beyond the in control and drawback was not claimed and in that case in the facts that the assessee has not made out a case for any reason beyond his control and the only case made out that he was not aware of the scheme. The Hon'ble High Court had set aside the order of the Tribunal including the rejection order of the Commissioner. 3.1 The learned DR further relies on the ruling of the Hon'ble Delhi High Court in the case of Terra Films Pvt. Ltd. Vs. Commissioner of Customs - 2011 (268) ELT 443 (Del) , wherein the case was for conversion of shipping bills from one promotion scheme into another. The Hon'ble High Court observed that the exporter could not claim amendment in routine and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs House. Though, this discretion was to be 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 tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/consumables in the process and only verification of the same, the Commissioner of Central Excise have fixed the brand rate. It is further contended that Trichy Commissionerate sanctioned the Brand rate of drawback considering the fact that the respondent had exported the goods already. In such circumstances, the respondent prays for upholding the order of the Commissioner and dismissing the appeal of the Revenue. 5. Having considered the rival contentions, I am of the view that the Board or CBE C cannot issue circular to restrict the use and exercise of jurisdiction vested in the quasi judicial authorities. Circular No.4/2004 provides that powers to convert the free shipping bills to Brand Rate Drawback Shipping bills have been vested with the Juridictional Commissioner under Section 149 of the Act read with Rule 12 of the Drawback Rules for considering the case of amendment on merits. Accordingly, I find myself in fully agreement with the impugned order of the Commissioner, allowing the amendment in the Shipping Bills in question vide the impugned order. Thus, the appeal of the Revenue is dismissed and Cross-Objections are allowed for statistical purpose. The respondent will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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