TMI Blog2020 (5) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. For applicability of section 149 of the Customs Act relating to amendment of documents, all that has to be seen is that documentary evidence should have been in existence at the time the goods were exported. There is no document which was not in existence at the time the goods were exported for the simple reason that all the Appellant was claiming by the amendment was incorporation of the declaration that the Appellant intended to avail the rebate under paragraph 2 of the notification. Under paragraph 2 of the notification all that has to be seen for calculation of the rebate is the schedule. The documents mentioned in the order of the Commissioner (Appeals) were not required to be examined. It is, therefore, clear from the nature of the amendment that was sought by the Appellant in the Bills of entry and also from the provisions of section 149 of the Customs Act and the notification dated 29 June, 2012 that the amendment sought by the appellant in the shipping bills of entry was liable to be allowed since only a declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner rejecting the request of the Appellant is reproduced below:- 2. The Exporter although has submitted copies of impugned manual Shipping Bills (EDI Module was not in existence at that time), Relevant Invoices, Airway bills, Bank Realization Certificates, as per the provision of Section 149 of the Customs Act, 1962, post export amendment in Shipping Bill is allowed only on the basis of documentary evidences which were in existence at the time of export. But, no evidence in any of the submitted documents, which were in existence at the time of export was found to support the Exporter s claim of amendment for endorsing Service Tax Rebate on the said Shipping Bills, neither these documents reveal that the Exporter actually had the intention of claiming STR. xxxxxxxxxxxxx 5. On going through the facts and circumstances of the case, I find that since introduction of self-assessment regulations 2011, it is the duty of the assessee (in present case the exporter) to make correct and proper declaration about the goods intended to be exported and as to the benefits one wants to avail in respect of export of the goods. In the present case, as the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation dated 14.3.2017, the appellant exporter has not produced any such documentary evidence of receipt, use of services and tax paid on services, used in export of goods. Thus the basic requirement seems not to be fulfilled at the threshold. Besides, there is no declaration in the Shipping Bill about availing option of rebate of Service Tax as a % of FOB value of goods. The word used SHALL make it mandatory for the declaration to be made. The appellant exporter has not made such declaration while filing Shipping Bills. Shipping Bills pertain to period 20th March, 2013 to 28th November 2014. The impugned Notification was issued on 29th June, 2012. That means, the Notification was clearly in existence and it is presumed to be in the knowledge of the exporter. By not making such declaration, the exporter has not complied with the mandatory requirement of availing option of Service Tax Rebate as per Para 2 of Notification. 5.8 A plain reading of Section 149 makes it clear that it gives power to the proper officer to amend a document whereas Section 154 provides for correction of clerical or arithmetical mistakes by the Central Government, the Board or such officer of Customs or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax paid on specified services, used in export. Basic pre-requisite is tax paid on services, which is to be refunded. It means that, if no service tax is paid, where is the question of granting refund/rebate in terms of Notification 41/2012-ST. 5. It is this order dated 6 June, 2019 passed by the Commissioner (Appeals), that has been assailed in this Appeal. 6. Shri Tarun Gulati, learned Senior Counsel appearing for the Appellant has submitted that the Appellant did not indicate in the shipping bills that rebate of service tax paid should be granted to the Appellant, though all the necessary information required to be submitted under paragraph 2 of the notification dated 29 June, 2012 had been submitted with the shipping bills at the time of export of goods and, therefore, the Appellant was justified in seeking amendment in the shipping bills in terms of section 149 of the Customs Act for incorporating that the Appellant was claiming refund of duty under paragraph 2 of the notification dated 29 June, 2012. In this connection, learned Senior Counsel pointed out that rebate could be granted by way of refund of service tax paid on the specified service either under parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to reproduce the relevant portion of the notification dated 29 June, 2012. It is as follows:- In exercise of the powers conferred by section 93A of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) number 52/2011 - Service Tax, dated the 30th December, 2011, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 945(E), dated the 30th December, 2011, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby grants rebate of service tax paid(hereinafter referred to as rebate) on the taxable services which are received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods, subject to the extent and manner specified herein below, namely:- Provided that: (a) the rebate shall be granted by way of refund of service tax paid on the specified services. xxxxxx xxxxxx xxxxxx (b) the rebate shall be claimed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 3; (h) where the rebate involved in a shipping bill or bill of export is less than rupees fifty, the same shall not be allowed; (3) the rebate shall be claimed in the following manner, namely:- (a) rebate may be claimed on the service tax actually paid on any specified service on the basis of duly certified documents; (b) the person liable to pay service tax under section 68 of the said Act on the taxable service provided to the exporter for export of goods shall not be eligible to claim rebate under this notification; (c) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; (d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacturer-exporter has to register his Central Excise registration number and bank account number with the customs. If he is not so registered, he shall register his service tax code number and bank account number with the customs. The exporter has to make a declaration in the electronic shipping bill or bill of export, while presenting the same to the proper officer of customs. The service tax paid on the specified services eligible for rebate shall be calculated by applying the rate prescribed for goods of a class or description, in the Schedule, as a percentage of the FOB value of the said goods. 15. As the Appellant had not made any declaration in the shipping bills, an amendment was sought in terms of section 149 of the Customs Act that deals with amendment of documents. It provides that the proper officer may, in his discretion, authorize any document, after it has been presented in the customs house to be amended, provided that no amendment shall be so authorized after the goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were exported. The Appellant had claimed amendment to make a declaration in the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Under paragraph 2 of the notification all that has to be seen for calculation of the rebate is the schedule. The documents mentioned in the order of the Commissioner (Appeals) were not required to be examined. 18. The provisions of section 149 of the Customs Act relating to amendment of documents came up for interpretation before the Bombay High Court in Commissioner of Customs v/s. Man Industries (I) Ltd. 2007 (216) ELT 15 (Bom) The observations of the Bombay High Court are as follows: 3. We have also perused the order of the CESTAT, wherein it is clearly observed as under :- By application of this principle, it ought to be held that even if the Appellant s case did not fall within four corners of the Board s Circulars in question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts and circumstances of the case, particularly the undisputed position that the entire claim for conversion of the Shipping Bills was based on documentary evidences in form of Chartered Engineers Range Superintendent of Central Excise Certificates, arrived at on documents and material anterior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification which was granted it would not mean that the applicant cannot later claim exemption under category 3 of the exemption notification after seeking cancellation of exemption granted under category 2. The Supreme Court observed that in case the applicant is entitled to the benefit under two different heads, grant of exemption under category 2 and withdrawal of the said benefit cannot come in the way of the applicant claiming exemption under category 3 if the conditions laid down are fulfilled. The observations are as follows: 10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. So far as cancellation of exemption under category 2 is concerned, we are not called upon to decide legality or otherwise of the said decision as it has not been challenged before us in the present proceedings. The short question which we have to answer is whether the appellant could claim exemption under category 3 and non-cons ..... 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