TMI Blog2020 (12) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by circular no. 4/2004-Cus dated 16th January 2004 of Central Board of Excise Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised by the exporter. The timeframe of one month, in the first of the circulars, kicking in from rejection by the Directorate General of Foreign Trade, could no longer be the benchmark and a longer span of three months from the date of let export order (LEO) was considered to suffice for the exercise of such option. Hence, it is apparent that the more recent circular was intended to liberalise the migration from one scheme of the Foreign Trade Policy to another. The bar of limitation could be invoked only in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the threshold. 2. From the facts set out in the appeal, as well as the narration of Learned Counsel for the appellant, it would appear that exports were being regularly effected under the duty-free import authorisation (DFIA) scheme as well as under claim for drawback which, after the imposition of restrictive condition of mandatory utilization of imported inputs in eligible exports by notification no. 31/2013-Cus dated 1st August 2013, was confined to the latter. Following the decision of the Hon ble High Court of Punjab Haryana, in Pushpanjali Floriculture Ltd v. Union of India in 2016 that negated the condition of actual usage of inputs in the export product with recourse, thereafter, to the export promotion scheme, the appellant, on 16th September 2019, also sought for conversion of the shipping bills on which drawback had been claimed, and received, during the interregnum with an undertaking that the drawback disbursed to them would be repaid, along with interest, upon acceptance of their request. The interests of appellant would, thus, appear to have been inclined towards access to, and disposal of, eligible imported inputs rather usage in the manufacturing process. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inment of other objectives of governance by sacrificing of revenue. 5. The exceptionalism that characterizes drawback statutorily obligating the customs administration to reimburse taxes on satisfaction that export has been completed - stands in vivid contrast to episodic certification of individual shipments that gains for the exporter exemption from customs levy on future imports against a status that is accorded, and monitored during the life-cycle, by an authority external to the customs administration. The understandably rigid approach to determination of eligibility for such exemptions, emanating from the Foreign Trade Policy, has been demonstrated in the reliance upon limitation espoused in the circular for denial of the application requiring us to consider the nature, and purport, of the lenitive adjuring therein, as well as in that of the predecessor one, to which we shall devote attention after dealing with the primary submission of Learned Counsel. 6. According to Learned Counsel, the issue in dispute, viz., non-applicability of the circular, to the extent of not being in consonance with the parent provision, i.e. section 149 of Customs Act, 1962, legislated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard s Circular dated 23- 9-2010 in consequence to the observation that 5.1 The undisputed facts are appellants had exported biscuits and assorted confectionery products and seeking duty drawback benefits as per para 4.1 (b) (ii) of Foreign Trade Policy and the duty drawback claim of the appellant has not been sanctioned till the filing of this appeal.... xxxx 5.3 It is not the case of the department that duty drawback or DFIA is not export promotion scheme. 5.4 The adjudicating authority has recorded findings that since the duty drawback claim of exporter are under process and is not denial of drawback, but kept under suspension for some reason, the exporter cannot belatedly seek conversion is also incorrect... In the case in hand in our considered view, conversion of shipping bill from Duty drawback to DFIA Scheme needs to be allowed as appellant though had sought duty drawback were not sanctioned, entitles him to apply for conversion from duty drawback scheme to DFIA scheme. In both the schemes the level of examination by authorities of export cargo, remains the same. Likewise, in re Mrs Bectors Food Specialities Ltd andin re Lykis Limited, the Tribunal di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the manner claimed by Learned Counsel. 7. The adjunct contention on behalf of appellants, following from the claim of being covered on all fours by the cited decisions of the Tribunal, is that the circular relied upon by the adjudicating authority has been held, in those very decisions, to have imposed restrictions that are not envisaged in section 149 of Customs Act, 1962. We note that the observation, in re Parle Products Pvt Ltd, on enforceability of time limit prescribed in the cited circular has been echoed in re Lykis Limited. Learned Authorized Representative contends that departmental authorities are bound by each of the prescriptions, including that of rejection of conversions that are not sought within the time limit of three months, stipulated in circular no. 36/2010-Cus dated 23rd September 2010 of the Central Board of Excise Customs. 8. The facility of amendment under Customs Act, 1962 is permitted within the framework of section 149 and, though referred to in re Parle Products Pvt Ltd, the Tribunal had not been called upon to, and indeed did not have to, scrutinize the relevant statutory provisions while remarking, and quite correctly, that 5.6 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 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.... Therein, the Hon ble High Court did distinguish the two while, at the same time, rendering a finding that not only was the rejection consistent with the circular relied upon but also within the scope of judiciousness spelt out in section 149 of Customs Act, 1962. Resolving another dispute, in Commissioner of Customs (Seaport- Export), Chennai v. Suzlon Energy Ltd [2013 (293) ELT 3 (Mad)], arising from rejection of conversion, the Hon ble High Court of Madras, following the decision in re Terra Films Pvt Ltd, set aside the order of the Tribunal with the finding that 19 .......... the 1st Respondent s claim seeking conversion is not maintainable and the same has been rightly rejected by the Commissioner of Customs. The Tribunal has not gone in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seen that amendments of documents can be facilitated at any time after their presentation in the custom house. The seemingly open-ended jurisdiction for amendment of documents is, nonetheless, constrained within the discretion vested in the proper officer to permit that. Clearly, it is not a right to have the amendments incorporated and the applicant is, therefore, obliged to justify the necessity, in terms of consequential detriment, for invoking the provision. Concomitantly, it devolves on the proper officer to place the applicant on notice of any want that may impede such permission or of any doubts that may be brought to bear on grant of the application and to further issue a reasoned order in the event of rejection. The deployment of the expression document and the appending of proviso is calculatedly significant. Though not one of the enumerations in section 2 of Customs Act, 1962, document is found scattered within several operative provisions, especially in the context of entries, as prescribed, and of assessment, connoting the evidence in support of the contents in the entry under section 46 and section 50 of Customs Act, 1962. Having been specifically defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the law as it now appears, under a scheme in the Foreign Trade Policy that may have entitled them to post-exportation import of specified goods without payment of duty and it is only by the requested amendment that the Directorate General of Foreign Trade could consider extending that privilege to them. Approval of the request would exclude them from the reimbursement, contractually stipulated, in section 75 of Customs Act, 1962 and, therefore, entails recourse to section 149 of Customs Act, 1962. Further enablement for privileges flowing from a scheme, devised under the authority of Foreign Trade (Development Regulation) Act, 1992, would emanate from the flexibility intended by circular no. 36/2010-Cus dated 23rd September 2010of Central Board of Excise Customs. 12. The imperative of implementing schemes of export promotion under the Foreign Trade Policy even at the cost of foregoing revenue mandates facilitation that may seemingly be in conflict with the remit of the taxing authority; a post-exportation conferment of that escapement is even less likely to facilitated and circular no.36/2010- Cus dated 23rd September 2010 is but a pathway to the larger objectives of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such orders, instructions and directions could encompass .implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any provision, restriction or procedure for import or export of goods In the absence of such authority, which could be construed as empowerment to enforce restricted applicability, the impugned circular, as well as its predecessor, could not have imposed rigid restrictions that are not contemplated in the parent statute and, in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another. The Tribunal, in re Parle Products Pvt Ltd, also acknowledged this conclusion thus 5.6 We find strong force in the contentions raised by learned Counsel for the appellant that Hon ble High Court of Kerala in the case of Leotex (supra) in para 4 has held that the Board itself had decided to liberalise the provision regarding conversion from one scheme to another, there should not be any reason to allow the same. Consequently, the bar of limitation could be invoked only in the absence of any mitigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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