TMI Blog2022 (12) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... hue, are borne within the regulations for implementation of section 50 of Customs Act, 1962; any other is mere piggyback riding prompted by convenient proximity of transaction of relevance which, in the impugned instances, is the trans-authority seepage of information. The subsequent authority conducts its own post-sanction verification for maintaining the integrity of the scheme without recourse to either the preceding authority or its transactional engagement with exporter. Failure on the part of the appellant to indicate the desired option in the impugned shipping bill has not vitiated the clearance of the goods covered by the shipping bills or of exports having been effected; the only consequence has been the impassability of the data relating to these exports to the electronic space dominated by the authority competent to grant the reward which they claim to be eligible for and which is yet to be determined. It would appear from the contents of the impugned order and the submissions of Learned Authorized Representative that the onus devolving on the applicant to produce documentary evidence of intent to avail the benefit accruing from merchandise exports from Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20th April 2015 of Central Board of Excise Customs (CBEC) which, while referring to the prescription of 3.14 Declaration of Intent on shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e-Commerce. (a) Export shipments filed under all categories of the Shipping Bills would need the following declaration on the Shipping Bills in order to be eligible for claiming rewards under MEIS: We intend to claim rewards under Merchandise Exports From India (MEIS). Such declaration shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP. In the case of shipping bills (other than free shipping bills), such declaration of intent shall be mandatory with effect from 1st June 2015. (b) in Handbook of Procedures (1st April 2015-31st March 2020) notified through public notice no. 01/2015-2020 dated 1st April 2015, has merely noted the change therein and the relevance in contingencies not yet contemplated. The chronological coinciding of introduction of merchandise export from India scheme (MEIS) in Foreign Trade Policy (FTP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common use by customs clearance system and licencing authority system) inadvertently landed with an unforeseen third: shipping bills with N ticked erroneously that were not transmitted to the DGFT. The immediate problem of such entry in bills filed between 1st April 2015 and 30th September 2015 was resolved by having the system of the licencing authority populated with the missing details through inter-departmental procedure. It is for enabling the transfer from second to third category, by substituting Y for N in the impugned shipping bills filed after this window, that application was preferred and the denial thereof is now under challenge. 5. With the context of this challenge laid out thus, we may now permit ourselves to proceed to the contents of the grievance of the appellant, viz., 19. In view of the above facts of the case, submission of exporter and findings, I conclude that the request of the exporter, M/s Jindal Drugs Pvt. Ltd., for amendment (conversion of export promotion scheme) under section 149, is liable for rejection on the grounds that the request for amendment is not supported by documentary evidence, which was in existence at the time the goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trated by the lack of response from customs authorities, had approached the Hon ble High Court of Bombay in writ jurisdiction which culminated in order of 16 th November 2021 directing disposal of 3 representation in accordance with law and upon granting opportunity of hearing to the petitioner within three weeks from date. It is ordered accordingly. In the event the petitioner s prayer for amendment is granted, follow-up action shall be taken also in accordance with law; if, however, the prayer for amendment is disallowed, a reasoned order shall be passed and communicated to the petitioner immediately thereafter thus according judicial recognition of the application dated 27th April 2008 for amendment upon which the impugned decision of the competent authority was made. For rejecting the request, the impugned order held the application to be barred by limitation of time prescribed in circular no. 36/2010 dated 23rd September 2010 which was held to flow from the authority of section 149 of Customs Act, 1962 besides lacking in assurance of documentary evidence essential for authorizing post-shipment amendment. 9. Learned Counsel for appellant submitted that all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational v. Commissioner of Customs (Appeal-II), Chennai [2021 (378) ELT 285 (Mad)] had been founded on the endorsement of intent in the shipping bills which is not evident here. As far as the bar of limitation is concerned, he contends that the impugned order has categorically explained the circumstances in which the circular of Central Board of Excise Customs (CBEC) is applicable. 11. According to the adjudicating authority, the discretion to permit amendments in documents is circumscribed by the conditions that may be prescribed under the empowerment of section 149 of Customs Act, 1962 and that time limit prescribed in circular no. 36/2010 dated 23rd September 2010 of Central Board of Excise Customs (CBEC) is binding on all subordinate authorities. It has been pointed out by Learned Counsel that the empowerment to prescribe form and manner, time as well as restrictions and conditions was incorporated in section 149 of Customs Act, 1962 only with effect from 1st August 2019, by Finance Act, 2019, while their request was preferred on 27 th April 2018 thereby precluding the test of any prescription that may have been put in place prior to this date. 12. The applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 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 other conditions in both the circulars were intended to ensure that it was indeed eligible goods that had been exported. Neither of the circulars claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e when application was preferred, of empowerment vested in Central Board of Excise Customs (CBEC) to prescribe such. 13. The amendment sought by the appellant does not involve change of any of the particulars mandated for inclusion under the authority of section 50 of Customs Act, 1962. Nor is there any plea for alteration of endorsement, if any, made in the shipping bills under the authority of section 51 of Customs Act, 1962. All that the appellant seeks is the substitution of N with Y in these bills and, that too, owing to manual facilitation not available as alternative, solely for the purpose of making shipment particulars accessible to the licencing authority. Cavil of the appellant is that the denial of authorization to alter the option in the impugned shipping bills is improper and discriminatory as several decisions cited supra have held otherwise. In proceedings leading to the impugned order, the appellant herein had cited the decision in re Kedia (Agencies) Pvt Ltd which was discarded with the assertion of inapplicability owing to the amendment effected in section 149 of Customs Act, 1962 since that judgement had been handed down. It would appear that the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued as intended for trade facilitation to overcome procedural impediments in availing benefits of schemes in the Foreign Trade Policy. That legislative intent is now made even more apparent by the sanction in Shipping Bill (Post export conversion in relation to instrument based scheme) Regulations, 2002 vide notification no. 11/2022-Customs (NT) dated 22nd February 2022. The legal context within which the competent authority was required to examine the application impugned here is, therefore, relevant and pivotal for disposal of this appeal. 15. According to the adjudicating authority, the absence of any documentary evidence of intent to avail the reward under the merchandise export from India scheme (MEIS) in the Foreign Trade Policy (FTP) 2015-2020 does, in view of the rigour set out in proviso to section 149 of Customs Act, 1962, disentitle them to it. That, in our opinion, is oversimplification hardly befitting the latitude afforded by 149. Amendment of documents Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended in such form and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the touchstone. The distinction is attributable to source; documents belong to the importer/exporter and the freedom to amend those is to be unabridged save of such content the amendment of which may be detrimental to the interests of the State while bills of entry/shipping bills, being prescriptions of the State, may be allowed for amending by importer/exporter only for conformity with the factum pertaining to export/import. The rationale for distinguishing the approach to making changes in shipping bills and the ultimate consequence of shifting between schemes cannot be more blindingly apparent. 10. From our discussion supra on the legal provisions and judicial pronouncements, it emerges that amendments sought under section 149 of Customs Act, 1962 may be permitted in documents subject to justification including the reasonableness of the time within which such alteration is sought to be incorporated and in bills of entry/ shipping bills alterations are to be denied only to the extent of not mirroring the facts at the time of clearance/exportation. Implicitly, the ascertainability of the facts, and not mere elapse of time which was not considered for specifying in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 25 of Customs Act, 1962, also does not assign any scheme driven responsibility for oversight of exports eligible for the said rewards. As per the Foreign Trade Policy 2015-2020 and the corresponding provision in the Handbook of Procedure, the competent authority under the Foreign Trade (Development Regulation) Act, 1992 directly and electronically sanctions rewards upon application by eligible exporters; the details of eligible exports are already populated on that system from the shipping bills filed electronically with the jurisdictional customs formation by exporters upon indication of intent to claim the reward by opting for Y in response to the relevant query at that stage. The entire scheme is, thus, administered under the auspices of the Directorate General of Foreign Trade (DGFT) with no role envisaged for customs authorities beyond statutory assignment under section 51 of Customs Act, 1962. That no intrusion in the administration of the scheme or any alteration of existing system of examination was warranted upon inception of the scheme in the said Foreign Trade Policy (FTP) is sufficiently acknowledged by mere, and imprecise, incantation about info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of customs authorities. Neither did the public notices seek to draw upon the statutory power of amendment conferred by the customs statute for regularization within the initial window of opportunity. These were intended to empower the subordinate formations of the Directorate General of Foreign Trade (DGFT), in its facilitative role, to overcome the sequestering of information, arising from failure to exercise the preferred option at the stage of entering for export, and not only have access to essential data but also to culminate in issuing of the scrips that are the rewards envisaged in the scheme after carrying out their own documentary checks. Being the sole responsibility of authorities under the Foreign Trade (Development Regulation) Act, 1992, the mechanics of the scheme cannot be drawn upon by a gateway authority for ascertainment of deservement for reward as qualification for permitting traversing of the gateway. That would amount to second guessing the competent authority or appropriating a police role without authority of law. That public notice no. 40/2015-2020 dated 9th October 2015 and no. 47/2015-2020 dated 8th December 2015 enabled bills filed in April 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
