TMI Blog2021 (11) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise - the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable. Time Limitation - HELD THAT:- It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the learned counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that section 149 of Customs Act, 1962 does not prescribe any time limit - The jurisdictional High Court in the case of M M/S. HEWLETT PACKARD ENTERPRISE INDIA PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF CUSTOMS, DEPUTY COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE [ 2020 (10) TMI 970 - MADRAS HIGH COURT] observed that the proviso in section 149 permits amendment even after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pping bills. Show Cause Notice dated 20.2.2019 was issued proposing to reject the request for conversion of Shipping Bills on the ground that the request for conversion / amendment of Shipping Bills pertaining to exports made during the period 2000 to 2014 is barred by limitation as provided in CBEC Circular No. 36/2010-Cus. dated 23.9.2010. After due process of law, the original authority vide order impugned herein, rejected the request on the grounds; that the reason put forth by the appellant for omission to file drawback shipping bill at the time of exports is not satisfactory, the request is barred by limitation as per Board Circular and that the documents which were in existence at the time of exports are not available. 3. The learned counsel Ms. A. Aruna appeared and argued for the appellant. The grounds put forward in the appeal as well as the submissions made at the time of arguments are summarized as under:- (a) The discussion given in the impugned order for arriving at the aforesaid grounds of rejection are as below:- (i) The appellant requested for conversion of unspecified number of shipping bills for the years from 2000 to 2011. (ii) The appellant has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e copies of the shipping bills to the office of the respondent. (d) The appellant had also submitted sample copies of ARE1 and would have submitted the remaining ARE-1 if the respondent office had directed the appellant to produce them. In the SCN or during the personal hearing, the appellant was not put to notice that the documents produced are insufficient to consider the request for amendment. Had the appellant been informed at any point of time, before passing the impugned order, they could have furnished the documents once again. Rule 12(1)(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, reads as under:- Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods (a) state on the shipping bill or bill of export , the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback , and if so, at what rate or rates and make a declaration on the relevant shipping bill or bill of export that (i) a claim for drawback under these rules is being made; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for non-observation of procedure, that too when the assessee is otherwise eligible for the benefit and has fulfilled all other conditions. In the subject case, the appellant had paid duty on the inputs. They used duty suffered inputs and raw materials in the manufacture of export goods and the goods were subjected to examination and scrutiny of jurisdictional Central Excise authority as established by the document in the nature of ARE1s. (i) The appellant had requested to amend the shipping bills under section 149 of the Customs Act, 1962. The said provision of law allows amendment of any customs document, even after clearance of goods from customs, and the only condition provided therein is that the documentary evidence, based on which amendment sought, should have been in existence at the time of export / import. Further, proviso to Rule 12(1) of Drawback Rules, 1995 also allows conversion of Free Shipping Bills and no time limit is prescribed in this Rule also. (j) The shipping bills indicate the description, quantity, value and other particulars of the goods exported. The goods were allowed for export after due verification of such description. Hence, when goods were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the case of Nucleus Satellite Communications Pvt. Ltd. Vs. CC 2007 (216) ELT 67 (Tri. Chen.), wherein it was held that the circular of the Board No.4/2004 does not mention any statutory bar for denying the conversion claimed by the exporters. By denying export incentives granted by the Government through various schemes, the objective to promote exports will be defeated . She prayed that the appeal may be allowed. 7. The learned AR Shri S. Balakumar appeared for the department. He supported the findings in the impugned order. It is argued by him that the period involved is from 2000 to December 2014. There is much delay in filing the request for conversion of the free shipping bill into duty drawback shipping bill. The appellant vide letter dated 9.10.2015 furnished details of FOB value as ₹ 77,41,61,176.40 and drawback amount of ₹ 1,40,90,563.85 for the period from January 2012 to December 2014 and furnished list of Shipping Bills for the corresponding period from January 2012 to December 2014. Thereafter, the appellant vide letter dated 25.1.2016 furnished revised FOB value as ₹ 4,30,20,50,859.59 and drawback amount of ₹ 8,11,20,455.25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to 'nil' examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995. 9. That as per Rule 12(1)(a) of the Drawback Rules, 1995 declaration has to be made at the time of exports, as to whether goods are eligible for drawback. Such declaration has not been made by appellant and the Shipping Bills were filed as Free Shipping Bills. The reason put forward by the appellant for failure to file declaration is not befitting and not beyond control. Rule 12(1)of Drawback Rules,1995 reads as under:- Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods (a) state on the shipping bill or bill of export, the description, quantity and such othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The issue is whether the rejection of request for amendment / conversion of free shipping bills to duty drawback shipping bills is legal and proper. 13. The appellant has made request for conversion of the shipping bills vide two letters as mentioned above. In the letter dated 25.1.2016, it is explained by them that drawback has been inadvertently not claimed by them while filing the shipping bills. In para 3 of the reply to the Show Cause Notice the reason for omitting to claim drawback by filing drawback shipping bills is explained by the appellant as under:- The noticee have been exporting goods from 1998 onwards. During 2014 15, they faced difficulties in competing in the international market due to escalation in cost of production and competition. In order to reduce the cost of production, so as to complete in the international market, they hired auditors to conduct audit for the said purpose. From such audit only they came to know that they have been exporting taxes also in addition to exporting the goods which otherwise, could have been got back as duty drawback. As per drawback sub-serial No. 8409, subject goods are eligible for 2% drawback. 14. On real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 2001 Invoices 46,685,572.50 887,026.00 2. For 2002 2003 Invoices 61,438,095.68 1,167,319.00 3. For 2003 2004 Invoices 341,033,124.36 6,479,534.00 4. For 2004 2005 Invoices 172,758,600.00 3,282,413.40 5. For 2005 2006 Invoices 513,563,926.05 9,757,709.00 6. For 2006 2007 Invoices 335,911,765.83 6,382,316.00 7. For 2007 2008 Invoices 600,337,073.14 11,406,412.00 8. For 2008 2009 Invoices 342,435,776.37 6,506,279.00 9. For 2009 2010 Invoices 402,037,449.91 7,638,718.00 10. For 2010 2011 Invoices 458,249,510.96 8,706,737.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export. The department does not specifically dispute the export of goods. The appellants have furnished copies of Shipping Bills, BRC and ARE-1. These documents are sufficient to prove that goods manufactured by them using imported inputs were exported. The ARE-1 document would show that the goods have been removed from the factory for export after it has been examined / verified by the Superintendent of Central Excise. The reverse side of ARE-1 inter alia reads as under:- Certified that I have opened and examined the packages No. 5/12 and found that the particulars stated and the description of goods given overleaf and the packing list (if any) are correct and that all the packages have been stuffed in the container No. NIL with marks and the same has been sealed with Central Excise Seal Lead Seal. 18. The above document would establish the description, quantity of the goods exported. The Bank Realization Certificate (BRC) would prove that consideration for the export has been received. 19. The learned AR has argued that the documents are not available with the department and that it is usually stored only for five years. As per Sec. 149, the requirement is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 149 of Customs Act, 1962 does not prescribe any time limit. 23. The jurisdictional High Court in the case of M/s. Hewlett Packard Enterprises Vs. Joint Commissioner of Customs 2021 (375) ELT 488 observed that the proviso in section 149 permits amendment even after clearance for home consumption, if contemporaneous documents to establish the export are supplied by assessee. In the said case, the writ petitioner imported goods during the period 24.7.2019 to 26.7.2019 by filing 17 bills of entry. The invoices contained an error while mentioning the unit price of the imported products which came to be perpetrated in the Bill of Entry as well. On realizing the error they approached the Customs authorities seeking amendment under section 149 of Act ibid. The amendment sought was rejected on the ground that the imported goods have already been cleared for home consumption. On 17.10.2019, the petitioner made a further request to which the officer vide communication dated 31.10.2019 referred to the judgment of Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata IV 2019 (368) ELT 216 and informed that petitioner could file refund for the excess customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority may subject the claim for duty drawback to the time limit of three months provided in the Circular No.36/2010-Cus., dated 23.09.2010 (in short, 2010 Circular ). 2. According to us, this apprehension is misplaced, as in paragraph 6 of the order, the Tribunal has, clearly, stated that the time bar provision will not apply in this matter . 3. Needless to say, since, the Revenue has not come up by way of cross objection, they cannot raise any cavil about limitation of three months prescribed in the Circular. 4. We may also indicate that neither Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, the Act ) prescribes, any time limit for processing the claim of duty drawback. 4.1. Furthermore, Mr. Chopda, has not been able to show any other provision in the Act or, the Rules framed thereunder, which provide for a time limit for processing the claim lodged for duty drawback. 5. As indicated above, the Tribunal has not accepted the stand of the Revenue that the Assessee's claim can be subject to time limit, as provided in the 2010 Circular. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. In WP Nos. 18891 to 18893 of 2017, this High Court by its decision dated 25-7-2017 has held that the only embargo under Section 149 of the Customs Act, 1962 is that a person seeking relief cannot rely upon a documentary evidence, which came into existence after the goods were cleared, deposited or exported, as the case may be. xxx xxxx xxxx xxxx 26. With these observation, the above writ petitions are partly allowed with a direction to the 1st respondent or any other officer authorised under the Act : (i) to pass a speaking order in respect of assessment made in the 23 and 9 bills of entries of the respective petitioner under Section 17 read with proviso to Sections 149 and 154 of the Customs Act, 1962 within a period of six month from the date of this order after giving adequate opportunity to the petitioners to establish the classification of imported wall fan under sub-heading 8414 51 90 following the principle [it] of natural justice. (ii) Refund any will be subject to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Central Government may make rules for the purpose of carrying out the scheme of drawbacks. Section 75A speaks about interest. It states that when any drawback payable to a claimant under section 74 or 75 is not paid within a period of one month from the date of filing a claim for payment of such drawback, the claimant will be eligible for interest at the rate fixed under section 27A of the Customs Act, 1962. 30. The Drawback Rules, 1995, as amended from time to time governs the procedure for claiming of drawback. Being an export promotion incentive, the procedure for claiming is also simple and hassle-free. The exporter is required to file a drawback shipping bill in the format as required under Rule 13 along with necessary declaration. The goods are examined by officers and a report made thereof. Copy of the drawback shipping bills which contains details of examination report is the claim copy for the drawback. The claim is then settled and passed by the officers of the customs department. 31. We are fully conscious that the issue in this appeal is not for claim of drawback but only request for amendment of shipping bills. In fact, as per sub-clause (a) of the first pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Collector of Customs Vs. TVS Whirlpool 1996 (86) ELT 144 (Tri.) the question that came up for consideration was that what would be the limitation period for raising a demand of interest when there is no time limit prescribed for demand / recovery of interest under Sec. 47 read with Sec. 61(3) of the Customs Act, 1962 as it then stood during the relevant time. No period of limitation was prescribed in these provisions for recovery of interest. The facts are such that, though the assessee had paid duty with interest the department was of the view that assessee was liable to pay further amount as interest for which notice of demand was issued. The Tribunal followed the judgment of Hon ble Apex Court in Govt. of India Vs. Citedal Fine Pharmaceuticals 1989 (42) ELT 515 (SC) which has been already captioned in the above decision. The relevant portion of the order is reproduced as under:- 4. We have considered the submissions made by both sides. We observe that no period of limitation has been prescribed under Section 61(3). A reasonable period of limitation will have to be read under this section as held by the Hon ble Supreme Court in the case of Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case. 5. This Tribunal in the context of the demands raised under Rule 57- I of the Central Excises and Salt Act, 1944 when no period of limitation was prescribed under the said rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. 13. The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as already stated, is to claim refund of duty suffered on inputs in the nature of drawback. The Limitation Act limits the period for filing a suit for recovery of money to three years. As per Article 137 of the Schedule to The Limitation Act, 1963 any application for which no period of limitation is provided elsewhere is three years from the time when the right to apply accrues. We are unable to refrain ourselves from being not persuaded by these provisions in the Limitation Act to hold that a period of three years would be a reasonable time for filing an application under section 149. 42. The application dated 9.10.2015 contains request for amendment of Shipping Bills for the year 2012 to 2014. It gives details of shipping bills for three years (Jan. 2012 to Dec. 2014). The second application dated 25.1.2016 made by the appellant is only an afterthought by which appellant has included Shipping Bills from the year 2000 to 2011. We hold that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper. 43. In the result, we hold that (i) The re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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