TMI Blog2024 (2) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the time limit prescribed by the Board Circular is not binding as same is not statutory provision in terms of section 149 of the Customs Act 1962. The aforesaid order has been challenged by the Revenue before the Hon ble Gujarat High Court in THE PRINCIPAL COMMISSIONER OF CUSTOMS, MUNDRA VERSUS M/S LYKIS LIMITED [ 2021 (2) TMI 261 - GUJARAT HIGH COURT] dealing with one of the specific issue of limitation of three months held that Section 149 is applicable at the relevant point of time. The rejection of the appellant s request for conversion of DFIA Scheme to DBK Scheme in shipping is absolutely illegal and incorrect - the impugned order set aside - appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Vikas Mehta, Consultant appeared for the Appellant Shri Anand Kumar, Superintendent (Authorized Representative) for the Respondent ORDER RAMESH NAIR The issue involved in the present case is that whether the rejection of request of conversion of DFIA Shipping Bill to DBK on the ground of limitation as prescribed under Board Circular No. 36/2010-Cus dated 23.09.2010 is legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought for the conversion of Drawback shipping bills to DFIA shipping bills, in terms of Section 149 of Customs Act 1962 which reads as under:- 149. Amendment of documents. Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorize 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 authorized 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. 4.1 From the above Section, it is clear that no time limit is prescribed. We find that the request of the appellant for conversion was rejected on the sole ground of limitation as prescribed under Board Circular No. 36/2010-Cus. We find that since the time limit has not been prescribed under the act, the same cannot be fixed by way of the circular. Therefore, if at all there is a time limit by way of circular it is only procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 months are over from the date of such export? (iii) Whether the Tribunal is correct in holding that the Circular is only laying down a procedural guideline and the conditions mentioned therein are not required to be fulfilled by the exporter to take the advantage of the scheme? (iv) Whether the Tribunal is justified in following the judgment of Mumbai Tribunal and not appreciating the law laid down by this Hon ble Court? 3. We have heard Mr. Ankit Shah, the Learned Senior Standing Counsel appearing for the Revenue and Mr. Mihir Joshi, the Learned Senior Counsel appearing with Mr. Hardik Modh, the Learned Counsel appearing for the respondents. 4. It appears from the materials on record that the respondents herein preferred an application addressed to the Principal Commissioner Customs, Mundra for conversion of 204 shipping bills from Drawback Scheme to Duty Free Import Authorization (DFIA) Scheme. The request came to be rejected by the Principal Commissioner Customs on the ground that the same was time barred. The Principal Commissioner Customs took the view that such a request was made for conversion after three months from the date of the Let Expert Order (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Gujarat High Court judgment in the case of Anil Sharma v. Union of India - 2017 (350) E.L.T. 322 (Guj.) held that the assessee was entitled for conversion of shipping bill from DBK Scheme to DFIA Scheme. We after going through the said decision find that the circumstances and reason for delay in filing request for conversion was almost identical in the present case. In the case cited of co-ordinate Bench of this Tribunal Mumbai dealing with the identical issue in the case of Parley Product Pvt. Ltd. (supra) on the fact that the conversion of drawback shipping bill to DFIA shipping bill was after 2 years, wherein it was held that no time limit provided under section 149 of Customs Act, 1962. As per our above discussion, we are of the 5. view that the appellant is legally entitled for conversion of Drawback Shipping Bills to DFIA Shipping Bills in respect of 184 Shipping Bills as per the list provided in appeal along with the appeal memo. The respondent Commissioner is directed to issue necessary certificate enabling appellant to get the DFIA licenses revalidated. 6. We are of the view that no error, not to speak of any error of law could be said to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently not imported any goods as per the DFIA, which has been cancelled by DGFT on 10-7-2013. Thus, there will be no imports under the said DFIA. 8. On this factual background, I have to consider the submissions made by both sides and I find that the submissions made on behalf of the Appellant needs to be accepted for more than one reason as under. 8.1 I find that DFIA in terms of Para 4.2.1 of Export-Import Policy, issued is to allow duty-free import of inputs, fuel, oil, energy sources, catalyst which are required for production of export product. Similarly, Para 4.2.6 shows that once export obligation has been fulfilled, request for transferability of Authorisation or inputs imported against it may be made before concerned authority. Once, transferability is endorsed, authorisation holder may transfer DFIA or duty-free inputs. Para 4.28(e) of HBP Vol. I, 2009-14 allows cancellation of DFIA when there is no imports made against exports and allows assessee to approach customs for conversion of Shipping Bill under Drawback scheme, for which no time limitation is provided by DGFT. 8.2 I find that Rule 12(1)(a) of Drawback Rules require an exporter to declare on the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by appellant, was only to China on quota basis and when such quota for export to China had been exhausted by other such exporters, there was no possibility for appellant to export any other quantity to China. After exports against DFIA scheme, there was no import by the appellant. Since Appellant could not fulfill export obligation, Appellant requested DGFT for cancellation of DFIA in terms of Para 4.28(e) of HBP Vol. I, 2009-14 vide their request, dated 28-6-2013. Para 4.28(e) ibid is reproduced : (e) In case an exporter is unable to complete EO undertaken infull and he has not made any import under Authorisation, Authorisation holder will also have an option to get the Authorisation cancelled and apply for drawback after obtaining permission from Customs authorities for conversion of shipping bills to Drawback Shipping Bills. Considering no imports made against said DFIA, DGFT, New Delhi cancelled DFIA No. 0510306798, dated 31-10-2011 in terms of Para 4.28(e) of HBP Vol.-I, 2009-14 vide their communication, dated 10-7-2013. Thus, in such facts, appellant could have applied for conversion only after getting cancellation of the said DFIA. The appellant applied for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter more than one year of export - Request rejected on the ground that Circular No. 36/2010-Cus., dated 23-9-2010 permitted conversion within three months from the date of Let Export order and no documentary evidence produced by the exporter which existed at the time of export to support the request - HELD : Circular being beneficiary in nature, issued consequently to a number of Tribunal s decisions holding that amendment of shipping bill after export is governed by proviso to Section 149 of Customs Act, 1962, which prescribes no time-limit for such conversion and if the documentary evidence available at the time of export is produced such conversion needs to be allowed - Circular No. 36/2010-Cus., dated 23-9-2010 and Section 149 of Customs Act, 1962. 8.10 I find that in the relied upon decisions on behalf of appellant, 2010 (259) E.L.T. 295 (Tri.-Ahmd.) and recent Order No. A/10565/2014, dated 9-4-2014 in Appeal No. C/39/2012-DB in case of Essar Oil Ltd., Division Bench of this Court has also allowed conversion of Shipping Bill from Free scheme to Drawback scheme considering exports made, Rule 12(1) of Drawback Rules and Section 149 of the Customs Act, 1962. 9. 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