TMI Blog2023 (7) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the shipping bills are filed under the Focus Product Scheme and are not completely free shipping bill. The exporter cannot be disadvantaged by rejecting the request for conversion of the shipping bill when the export of goods have not been disputed. Further, there is no evidence brought forth by the department as to any specific violation of any provisions of law with regard to the goods exported. The third ground for rejection is that the appellant has not put forward any ground justifying that the omission to file drawback shipping bill was for reasons beyond his control - HELD THAT:- It can be seen that Rule 12(1) of Drawback Rules,1995 allows conversion of shipping bill, if the exporter or his authorized agent has, for reasons beyond his control, failed to file the declaration. In the present case, the appellants have submitted that they had inadvertently omitted to file the declaration that the shipping bills are drawback shipping bills - appellant has given plausible explanation for the omission. The rejection of request for conversion on this ground cannot sustain and requires to be set aside. The rejection of request for conversion of shipping bill is not justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a consignment). The package number to be opened for examination will be selected by the system. That therefore the rejection of request on the ground that the consignment was not examined is without basis. 5. The second ground for rejection is that the request for amendment is made beyond 3 months from LEO as provided in Board Circular No.36/2010 Cus. dt. 23.09.2010. Ld. Counsel adverted to the decision of the Tribunal in the case of Autotech Industries (India) Ltd. Vs CC Chennai-IV - 2022 (380) ELT 364 (Tri.-Mad.) to argue that in the said decision the Tribunal has discussed the issue of time bar and held that when no time limit is prescribed under Section 149 of the Customs Act, 1962 the department cannot reject the request for conversion on the basis of Board circular. It is also pointed out that in the present case, the requests filed are within three months and only single request is beyond the period of one month. To support the arguments on the issue of time bar the decision of the Hon ble Jurisdictional High Court in the case of Global Calcium Pvt. Ltd. Vs CC Chennai IV in CMA No.875/2017 dt 29.6.2017 was relied. The decision of the Hon ble High Court of Kerala in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Ld. A.R thar the importer / exporter cannot claim amendment of shipping bills as a matter or right. The words used viz. proper officer may in his discretion can authorize any document to be amended indicates that the power to exercise is only discretionary power. The Commissioner has refused to exercise the discretion in favour of the appellant. The appellant has not followed the guide lines prescribed by the Board circular No.36/2010. She prayed that the appeals may be dismissed. 9. Heard both sides. 10. The main issue to be considered in these appeals is whether the rejection of request for conversion of shipping bills into drawback shipping bill is legal and proper. 11. The first ground for rejection is that some of the requests are made beyond the period of 3 months as stipulated in the Board circular No.36/2010. The very same issue came up for consideration before the Tribunal in the case of Autotech Industries (India) Ltd. (supra) and the Tribunal held that the request for conversion of shipping bill cannot be rejected as time barred on the basis of the Board circular. 12. The Tribunal in the said case has observed as under : 17. The only requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit for filing an application for amendment of shipping bill. The said section reads as under :- 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 : Provided that no amendment of a 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 export 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 . 21. It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, as already discussed, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported. 22. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, on record that such amendment could even be considered. 13. I cannot agree. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were in existence at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually in existence' is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being in existence at the relevant time to evidence an error sought to be amended. 14. In the light of the discussion as aforesaid, the rejection of the request for amendment by the respondent is set aside to be re-done de novo. This writ petition is allowed. 24. The Hon ble jurisdictional High Court in the case of Global Calcium Pvt. Ltd. v. Commissioner of Customs, Chennai vide judgment dated 29-6-2017 in CMA No. 875 of 2017 observed as under :- 1. After some arguments, Mr. Derrick Sam, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duty is 20%. The error resulted in payment of excess duty to the tune of Rs. 14,50,01,413/-. Immediately, on detecting the error, a letter dated 7-6-2019 was submitted requesting to correct the bill of entry. The request was declined. The Hon ble High Court referred to various decisions including the decisions in Hewlett Packard Enterprises (supra) and Usha International Ltd. v. Assistant Commissioner - 2019 (365) E.L.T. 56 (Mad.). The relevant paras read as under :- 17. The Learned Counsel for the petitioners submits that the mistake in adopting the correct classification for the purpose of assessment can be rectified under Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962 a proper officer in his discretion may authorise any document to be presented. Section 149 of the Customs Act, 1962 reads as under :- Amendment to 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 : Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erlook a serious question presented by the peculiar facts of the case before us. In the absence of any period of limitation prescribed in the section, whether it would mean that the remedy/relief can be sought for at any time when the Importer/Exporter wake up to realize the mistake or omission. In our opinion, the remedy has to be sought for within a reasonable time. A legal claim cannot be enforced if there is a long delay in asserting the right or the claim. 13. The second ground for rejection is that the packages have not been opened for examination. Ld. Counsel has produced Board Circular No.1/2009-Cus. dt. 31.01.2009 which provides for norms for opening and examination of consignments in case of export promotion scheme. In the present case, the shipping bills are filed under the Focus Product Scheme and are not completely free shipping bill. The exporter cannot be disadvantaged by rejecting the request for conversion of the shipping bill when the export of goods have not been disputed. Further, there is no evidence brought forth by the department as to any specific violation of any provisions of law with regard to the goods exported. 14. The third ground for rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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