TMI Blog2020 (1) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... T CHENNAI ] where it was held that the request for conversion of the shipping bill cannot be disallowed by pressing into the application of time limit prescribed by the Board in its circular dated 23.9.2010. The impugned order cannot be sustained and is being set aside - The appeal is allowed by way of remand to the original adjudicating authority for conversion of free shipping bills to EPCG shipping bill. - CUSTOMS APPEAL NO. 51621 of 2019 - FINAL ORDER NO: 50001/2020 - Dated:- 3-1-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri B K Singh and Ms. Vandana Singh, Advocates - for the appellant Shri Rakesh Kumar, Authorized Representative - for the respondent ORDER BIJAY KUMAR: 1. The present appeal is directed against the Order dated 10.04.2019 passed by the Commissioner of Customs (Export), Inland Container Depot (ICD TKD), New Delhi, vide which a request of M/s Isolloyd Engineering Technologies Limited (the Appellant) for conversion of fourteen shipping bills from free shipping bills under scheme Code 00 to Export Promotion C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of amendment in terms of Section 149 of the Customs Act, 1962 to get Export Obligation Discharge Certificate from the DGFT. 4.2 I observe that the amendment of shipping bills post Let Export Order under Section 149 of the Customs Act, 1962 can be allowed only on the basis of documentary evidence, which was in existence at the time of clearance of goods for export. Assistant Commissioner (Export Shed) was requested vide letter dated 26.12.2018 to provide Customs Bunch of the Shipping bills. Assistant Commissioner (Export Shed) vide letter dated 15.02.2019 has informed that the desired Customs Bunch pertains to very old period, and the original docket files relating to shipping bills in questions are not traceable. 4.3 I find that exporter s request for amendment of shipping bills actually tantamount to conversion of Scheme. The Exporter had earlier filed the shipping bills under Scheme Code 00 (free shipping bills involving remittance of foreign exchange); and now, the exporter is requesting for issuing certificate of amendment under Scheme Code 11 (Concessional Duty EPCG). The request has been examined in light of CBEC circular no. 36/2010-Customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing. His main contentions were as under: (i) Referring to the provisions of Section 149 of the Customs Act, 1962, he argued that the Section gives power to the Proper Officer to allow any document presented before the Custom House to be amended by the importer/exporter subject to the provisions of Section 30 and 41 of the Customs Act, 1962 (for short the Act). The Commissioner, being proper officer, had power to allow amendment of any document by the person who presented the document. Normally, the Bill of Entry or Shipping Bill cannot be amended after the goods have been cleared for import/deposited in the warehouse or a Let Export Order has been given in respect of export goods. However, the Section has one exception by way of proviso to the Section, to the effect that even after clearance of goods under home consumption/warehousing in the case of imported goods and even after giving an order for export goods have been exported, the amendment can be allowed if it is sought on the basis of documents, which were in existence at the time when goods were cleared, deposited in the warehouse or exported, as the case may be. He further submitted that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, whose name appeared in the Shipping Bills, Invoices and the AREs 1 accepted by the jurisdictional Central Excise Officer. He pleaded that, all these documents, were in existence at the time of filing the Shipping Bills. In fact, those were supporting documents of the Shipping Bills. (iv) Pointing out at page 24b of the appeal Paper Book, ld. advocate submitted that in similar Circumstances, the Dy. Commissioner of Customs (NHAV SHEVA) had issued a Certificate of Amendment in respect of hipping Bills filed between 12/01/2005 to 24/11/2005 on 14/12/2016. Which clearly shows that no time limit is prescribed under section 149 of the Customs Act. (v) Explaining the scheme of Export Import Policy, ld. Advocate explained that in the Foreign Trade Policy, while the duty exemption and remission schemes are covered under Chapter(IV) of the Foreign Trade Policy (which includes import under Advance Authorization, Duty Free Import Authorization, Duty Entitlement Passbook), but the EPCG scheme is instead covered under Chapter V of the Foreign Trade Policy. Thus, EPCG scheme cannot be equated with the other incentive schemes which refer to imported raw material a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Supreme Court in the case of Bengal Iron Corporation Versus Commercial Tax Officer reported in 1993 (66) ELT 13 (Supreme Court). We gainfully reproduce the relevant Paragraph of the said judgments of the Hon ble Apex Court: 18. So far as clarifications/circulars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law. There can be no estoppel against the statute. The understanding of the Government, whether in favour or against the assessee, is nothing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi-judicial functioning of the authorities under the Act. While acting in quasi-judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court - to wit, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
