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TMI Blog2023 (7) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 95. The original authority vide orders impugned herein rejected the request. Hence these appeals. 2. Ld. Counsel Shri L. Gokul Raj submitted that original authority has rejected the request for conversion to shipping bills in Appeal Nos.C/40151/2014 & C/40152/2014 on two grounds. Firstly, that there was no examination of the goods exported. Secondly, the request for amendment is time-barred in terms of Board's Circular No.36/2010-Cus. dt. 23.09.2010. 3. In Appeal No.C/40150/2014, the original authority has rejected the request for conversion of shipping on the ground that the appellant has not established that the omission to file the drawback shipping bills was due to reasons beyond his control. 4. In regard to the first ground that there was no examination of the goods exported, Ld. Counsel submitted that the appellant had filed the shipping bills under Focus Product Scheme given in Circular No.1/2009-Cus. dt.13.1.2009 which is on par with the norms for examination for exports made under the scheme of drawback provided under circular No.6/2002-Customs dt 23.1.2002. It is argued that as per Circular No.1/2009-Cus. dt. 13.1.2009 officers have to select for open and examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2010 prescribes the guidelines for conversion from one export promotion scheme to another. In the instant case, 22 shipping bills were given Let Export Order between 16.10.2012 and 22.11.2012 whereas the request for conversion was made on 16.02.2013 and received by the department on 22.02.2013 which is beyond the stipulated time limit prescribed in the Board circular which is 3 months. Though the remaining shipping bills were given let Export Order between 03.12.2012 and 22.12.2012 and the request made for conversion is within the time limit but since the packages were not physically opened for examination at the time of export, the adjudicating authority has rightly rejected the request for conversion. It is submitted that examination reports certifying the contents of the export consignment are not available as the consignments were not opened for physical examination at the time of export. Further, as per Rule 12 (1) (a) of Drawback Rules, 1995 the exporter had failed to declare the intention to claim the benefit under drawback scheme at the time of export which resulted in not examining the goods. The appellant has not fulfilled the conditions as stipulated in the Board circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not that the documents should be available with the department. It merely states that the exporter has to furnish documentary evidence which were in existence at the time of exports. In the case of M/s. Hewlett Packard Enterprises which is referred by us later, this point was discussed in para 12 and 13 of the judgment. The contention of the Revenue that the documents should be available with the department was not accepted by the Hon'ble High Court. The proviso gives an opportunity to the exporter/importer to furnish documents which were in existence at the time of export/import and get the error rectified. We therefore hold that the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable. 20. We may now address the issue of limitation which is the main ground for rejecting the request for conversion of free shipping bills to drawback shipping bills. The request for conversion/amendment of shipping bill is made under Section 149 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the judgment of Hon'ble Supreme Court in the case of ITC Ltd. v. CCE, Kolkata-IV - 2019 (368) E.L.T. 216 and informed that petitioner could file refund for the excess customs duty paid. Yet another request was made on 21-11-2019 and documents in the nature of (i) Price list, (ii) Purchase order inter se the petitioner and its supplier's reflecting the correct unit price (iii) original invoices showing the error (iv) purchase order (v) remittance report on 3-1-2020 order was submitted. However, the request was rejected once again. The Hon'ble Court held as under :- "11. Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were 'in existence' at the time of the goods were cleared, deposited or exported to establish the error. 12. The lis in this matter revolves around the interpretation of the phrase 'in existence', as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not accepted the stand of the Revenue that the Assessee's claim can be subject to time limit, as provided in the 2010 Circular. 6. Accordingly, the appeal is dismissed as withdrawn. Resultantly, pending application shall stand closed. There shall, however, be no order as to costs. 25. In the above judgment, the Hon'ble High Court has referred to the Board Circular, Section 149 of Customs Act, 1962 and Section 12(1)(a) of Drawback Rules and opined that the apprehension of the Counsel for petitioner that the request for conversion would be subject to scrutiny on the ground of limitation is for no reason. 26. The Hon'ble High Court of Delhi in the case of Dimension Data India Pvt. Ltd. v. Commissioner of Customs - 2021 (376) E.L.T. 192 (Bom.) has examined the very same issue. In the said case, the Bills of Entry dated 15-3-2019 to 25-4-2019 were sought to be amended. During internal audit, the petitioner realized that it had made inadvertent typo error at the time of filing the Bill of Entry by incorrectly declaring the CTH as 8517 69 90 instead of correct CTH 8517 69 30. For the goods under CTH 8517 69 30, the rate of duty is NIL whereas in respect of goods under other heading, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the principle [it] of natural justice. (ii) Refund any will be subject to the petitioner satisfying the test of unjust enrichment." 27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. The relevant paras 3 and 4 of the Board Circular No. 36/2010 has already been reproduced in para 8 above. By this Circular, a period of three months is prescribed to file the request for conversion/amendment. Section 149 does not prescribe any time limit for filing an application for amendment of document. No doubt that Section 149 of the Customs Act, 1962 would prevail over the Board circular. Further, Rule 12(1) of the Drawback Rules,1995 which lay down the procedure to claim drawback also allows filing of belated declaration to claim drawback if the Commissioner is satisfied that the failure to file the declaration was due to reasons beyond the control of exporter. The Rules also does not limit the time. We have to hold that the request for conversion of Free Shipping Bill cannot be denied as time-barred by resorting to the Board Circular. 28. Be that as it may, before concluding, we are not able to overlook a serious questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities : Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause" 15. It can be seen that the said rule 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. We find that 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. 16. From the discussions made above, and after following the decisions (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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