TMI Blog2023 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, following the decision of the Supreme Court in Kusum Ingots Alloys Ltd. vs. Union of India And Anr. [ 2004 (4) TMI 342 - SUPREME COURT] . The decision of the Gujarat High Court on the Circular in question was applicable and binding on all the customs jurisdictions throughout India. Thus, there is also no warrant in the Respondents contending that by virtue of the amendment as brought about to Section 149 by the 2019 Amendment Act, without following the procedure as mandated by Section 149, namely, in the manner as prescribed and as recognized by Section 2(35) the Circular would be valid. Petition allowed. - G.S. KULKARNI JITENDRA JAIN, JJ. For the Petitioners : Ms. Neha Anchlia, a/w. Mr. Anand Kanse. For the Respondents : Mr. Karan Adik, a/w. Mr. Dhananjay B. Deshmukh. ORAL JUDGMENT (PER G.S. KULKARNI, J.) : Rule made returnable forthwith. Respondents waive service. By consent of the parties, heard finally. 2. This petition under Article 226 of the Constitution of India, is filed by the Petitioners primarily being aggrieved by an order dated 29th December, 2021 passed by the Assistant Commissioner of Customs, Nhava Sheva, whereby the Petitioners application for amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Respondent No. 4 rejected the request as made by the Petitioners in the light of the impugned Circular No. 36/2010 Customs dated 23rd September 2010 and, more particularly, applying paragraph 3(a) of the said Circular, inter alia recording that the request for conversion of the shipping bills has not been made within three months from the date of the Let Export Order dated 25th May 2021. As the challenge has been mounted to such communication, it would be relevant to reproduce the impugned communication, which reads thus: Date: 29.12.2021 To, Colossustex Private Limited, 8577/4, Fourth Floor, Street Shanti Devi, New Rohtak Road, Karol Bagh, Delhi -110005. Subject: Amendment of Shipping Bill No. 1990910 dated 25.05.2021-regarding 1. Please refer to your letter dated 25.10.2021 on the above-mentioned subject. 2. At the outset it is informed that the request made by you is not mere a case of amendment but also involves conversion of the shipping bills from one export promotion scheme to another. The Board has stipulated restrictions and conditions for conversion of shipping Bills from one export promotion scheme to another vide Circular No. 36/2010-Customs dated 23.09.2010. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso come to notice of the Board that the Tribunals in a series of judgments have held that amendment to shipping bill after export of goods is governed by the proviso to section 149 of the Customs Act, 1962 and if the requirements of the said proviso are satisfied, conversion of shipping bill should be allowed. The conversion of the shipping bill from one scheme to another cannot be linked with denial of benefit of one scheme by DGFT/MoC I or Customs due to some dispute as no such condition for amendment of shipping bill has been provided in section 149 of Customs Act, 1962. 3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (for example, from Advance Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB scheme or vice versa) irrespective of whether the benefit of an export promotion scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not. The conversion may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd circular No. 4/2004-Cus dated 16.01.2004 and the earlier circulars issued in the past on this issue. This circular shall be applicable only to shipping bills filed on or after the date of issuance of this circular. Till such time as EDI system is modified to allow conversion of shipping bill in the EDI system, conversion may be allowed manually. 7. A suitable Public Notice for information of the Trade and Standing Order for guidance of the staff may be issued. Difficulties faced, if any in implementation of the directions may be brought to the notice of the Board. Kindly acknowledge receipt of this Circular. sd/- (Pramod Kumar) Technical Officer (DBK) 8. Our attention is also drawn to the provisions of Section 149 of the Customs Act, which provides for amendment of documents prior to its amendment by Finance Act, 2019 as also to the provisions as it stood post the amendment as effected by Finance Act, 2019 with effect from 1st August 2019: 9. Section 149, prior to its amendment by the Finance Act, 23 of 2019, reads thus: 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribes the time-limits in para 3(a) was ultra vires the provisions of Article 14 of the Constitution of India as also Section 149 of the Customs Act, 1962. 12. Learned Counsel for the Petitioners would submit that the impugned communication, which has been addressed subsequent to the decision of the Gujarat High Court in M/s. Mahalaxmi Rubitech Ltd. (supra), is per se illegal. It is submitted that even otherwise the impugned Circular No. 36/2010 dated 23rd September 2010 could not have been applied to reject the request as made by the Petitioners for amendment of the shipping bills. 13. On the other hand, Mr. Adik, learned Counsel for the Respondent Revenue, has opposed the petition. Mr. Adik has placed reliance on the affidavit-in-reply of G. Sita Rama Raju, Assistant Commissioner of Customs to submit that the actions of the department were justified. The primary contention as urged in the reply affidavit as also argued by Mr. Adik is to the effect that impugned Circular No. 36/2010 dated 23rd September 2010 is required to be held to be valid as it satisfies the mandate of Section 149 of the Customs Act as amended by Finance Act, 23 of 2019. Mr. Adik s contention is premised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h power on the Central Government and, hence, for such reason, the impugned Circular prescribing the time limits was per se contrary and ultra vires of Section 149 of the Customs Act. The Central Government could exercise power, provided such a power and authority was conferred by Section 149 of the Act, which is the only provision under the Customs Act, which provides for amendment to the documents. It was, thus, not permissible for the Central Government to issue the impugned Circular and, more particularly, prescribing the time-lines in paragraph 3(a) when it provided that a request for conversion be made by the exporter within three months of the date of the Let Export Order, only when such request would be considered. Thus, in our opinion, the said Circular itself was rendered bad and illegal and was contrary to the provisions of Section 149 of the Customs Act. 16. Learned Counsel for the Petitioners in such context would be correct in relying on the decision of the Coordinate Bench of this Court in Pinnacle Life Science Pvt. Ltd. (supra) wherein the Court observed that the impugned Circular could not have been issued by the Central Board of Excise and Customs (CBEC) prescribi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions by applying even the amended provisions of Section 149. Thus, Mr. Adik s contention on all counts justifying the Circular of 36/2010 cannot be accepted and would be required to be rejected. 21. We also find that in exercise of the powers under Section 157 of the Customs Act, various regulations have been prescribed, namely, the Warehoused Goods (Removal) Regulations, 2016, Warehouse (Custody and Handling of Goods) Regulations, 2016, etc. Certainly, it would be totally untenable for Mr. Adik to contend that the Circular in any manner can be elevated to be any regulations considering the plain language of Section 149 read with sub-section (2) of Section 157 and Section 2(32) and 2(35) of the Act. 22. We are also inclined to subscribe to the view taken by the Gujarat High Court in the case of M/s. Mahalaxmi Rubitech Ltd. when the Division Bench, considering the purport of Section 149, as it stood post 2019 amendment, has held the Circular to the extent it incorporates para 3(a) was ultra vires of Article 14 of the Constitution of India as also ultra vires of Section 149 of the Customs Act, 1962. In our opinion, the Assistant Commissioner could not have been oblivious of the sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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