TMI Blog2021 (8) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... gn exchange receipt against these exports. Section 149 confers discretionary power to the proper officer to amend the document but that discretion has to be exercised judiciously in order to deliver justice to the parties who makes an application before him. Appellant has produced documents in Volume-I and volume-II along with appeal papers which clearly proves that the goods were exported and the bank realisation certificate are produced evidencing the proof of export to the developed countries like USA, UK, Germany where stringent export laws are followed. Time limitation - HELD THAT:- The provision of Section 149 of the Customs Act, 1962 or the rules or notifications made thereunder does not provide any time limit for amendment or conversion of the documents and it is only through the circular issued by CBEC a period of three months have been prescribed. It has been consistently held by the Tribunal that the time limit prescribed by the CBEC is not binding on the court if the Circular is contrary to the statutory provision, then the statutory provision would prevail. The concerned Customs officer is directed to allow the amendment in the shipping bills but before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessing. There was an inadvertent mistake committed by the employee of the appellant who was looking after the import and export formalities and he has filed the shipping bills under the claim for duty drawback instead of advance licence and the same was noticed by the appellant only upon receipt of show-cause notice from the DGFT office during the month of March 2021. Thereafter, the appellant realised its mistake and vide letter dt. 24.03.2021 requested the Deputy Commissioner (Drawback), Devanahalli, Bangalore for amendment of shipping bills. After following the due process, the Principal Commissioner vide the impugned order rejected the request for amendment and conversion of shipping bills. Hence the present appeal. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the track record of the appellant who is in the business of export since 1988 and has clean record throughout and has generated a huge foreign exchange for the country by exporting its products to advanced countries like USA, UK, Germa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2015 (317) E.L.T. 271 (Tri. -Mumbai) Diamond Engineering (Chennai) Pvt. Ltd. vs. CC (Seaport-Export), Chennai - 2013 (288) E.L.T. 265 (Tri. - Chennai) VRA Cotton Mills Pvt. Ltd. vs. CC., Jamnagar (Prev.) - 2014 (309) E.L.T. 100 (Tri.-Ahmd.) Fantansey Engg. Exports Pvt. Ltd. vs. CC (Exports), Mumbai - 2008 (232) E.L.T. 100 (Tri. - Mumbai) Parle Products Pvt. Ltd. vs. CC., Nhava Sheva - 2017 (358) E.L.T. 341 (Tri. - Mumbai) CC Exports), Chennai vs. Suraj Agro Products - 2018 (361) E.L.T. 651 (Mad.) CC., Tuticorin vs. Thiru Arooran Sugars Ltd. - 2014 (307) E.L.T. 248 (Mad.) CC vs. Man Industris (I) Ltd. - 2007 (216) E.L.T. 15 (Bom.) Essar Oil Ltd. vs. CC., Kandla - 2014 (309) E.L.T. 344 (Tri. - Ahmd.) Karl Zeiss India Pvt. Ltd. vs. CC ST., Bangalore - 2018 (359) E.L.T. 388 (Tri. - Bang.) 4.2. He also submitted that the provisions of Section 149 of Customs Act, 1962 or the rules/notifications issued thereunder did not prescribe any time limit for amendment / conversion of documents and hence, the Circular issued by the CBEC cannot override the statutory provisions. In support of this submission, he relied upon the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Department could have been ordered for export without any such physical examination. He further submitted that the observation in the impugned order that there is no examination report and other endorsement made on the shipping bills by the Customs to prove that the export product is clearly covered under the relevant advance authorisation is totally misplaced as the goods were meant for export and are permitted to clear for export only upon verification of documents and on the basis of endorsement on the shipping bills. The Customs officer has clearly endorsed the shipping bills and ordered for export of goods only upon verification of documents. He also submitted that benefit of drawback claimed by the appellant is only ₹ 1,11,583/- whereas the duty foregone on the imported goods was more than ₹ 1 crore and under these circumstances, no one can even imagine that the imported goods can be diverted or misused by claiming duty drawback. 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant has not complied with the requirement of circular No.36/2010-Cus. Dt. 23/09/2010. He further submitted that amendment of the shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. Further I find that Section 149 confers discretionary power to the proper officer to amend the document but that discretion has to be exercised judiciously in order to deliver justice to the parties who makes an application before him. Appellant has produced documents in Volume-I and volume-II along with appeal papers which clearly proves that the goods were exported and the bank realisation certificate are produced evidencing the proof of export to the developed countries like USA, UK, Germany where stringent export laws are followed. 6.2. As far as limitation of time provided under the circular is concerned, I find that the provision of Section 149 of the Customs Act, 1962 or the rules or notifications made thereunder does not provide any time limit for amendment or conversion of the documents and it is only through the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I also refer the decision in the case of Essar Oil Ltd. Vs. CC Kandla, cited supra, wherein the Division Bench of the Tribunal in para 8.1 and 8.2. have observed as under:- 8.1 Firstly, we find that the documents like ARE-1, Bills of Lading, shipping bills specifically were signed by the Customs officers clearly indicate that the goods which were cleared for export was furnace oil. We do agree with the ld. Departmental Representative s submissions that the no samples were drawn for the consignments which were exported to ascertain whether they were furnace oil or otherwise. This would not be a cause for non-conversion of the application of the appellant, for the simple reason that M/s Geochem Laboratory, an independent analytical laboratory had analysed specific consignments which were exported; said reports indicate that the goods were furnace oil . The mere perusal of the analytical certificate given by M/s. Geochem Laboratory seems to co-relate the goods in the shipping bills wherein the description was given as furnace oil . 8.2 Secondly, we do find that C.B.E. C. vide Circular No. 25/2005-Cus., has specifically accepted the representation of the Trade an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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