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TMI Blog2024 (2) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the relevant period they have obtained 5 advance authorisation from 03.09.2004 to 09.03.2016. 2. Considering the volume of export, appellant converted the business to 100% EOU. Before converting into 100% EOU, internal audit was carried out and it is observed that they have failed to make endorsement regarding advance authorisation in the shipping bill from 03.09.2014 till 26.01.2015. Further from 18.11.2015 till 26.01.2016 they have opted for drawback scheme instead of endorsement of advance authorisation. Thus the appellant decided to make an adjustment in the document and made a request on 22.10.2020 seeking for letter of acceptance/NOC for converting shipping bill under drawback scheme to advance authorisation scheme. The requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e condition No.3 of the Circular No.36/2010 dated 23.09.2010 related to conversion of shipping bills. Regarding circular No.36/2010 relied by the adjudicating authorities fixing the time limit for submitting an application for amendment of document under section 149 of the custom act 1962, the issue was considered by various authorities and as per the judgement of the Hon'ble High Court of Kerala in the matter of PARAYIL FOOD PRODUCTS PVT. LTD. (2021(375)E.L.T. 486(Ker.)) "It is trite law that circulars cannot assume the role of the Principal Act lest the provisions only a binding force. If at all the Revenue is facing difficulties in accepting and processing applications for amendment of bills of lading, an amendment to the Principal Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of Bharat Timber and Construction Company Vs. CC Mangalore - Customs "From the plain reading of the above Section 149, it is clear that even though, it is discretionary but on certain conditions, the document can be amended even after the goods have been exported on the basis of documentary evidence which was existence at the time of goods were cleared for export. In the present case, the appellant had in possession of Advance Authorisation No.0710065592 dt. 26/06/2009 and Advance Authorisation N.0710065655 dt. 26/11/2010 and the exports of goods have been taken place from 30/06/2009 to 18/11/2010 and 27/12/2010 to 19/10/2012 respectively. Accordingly at the time of export of goods, the advance authorisations were very much in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions in this regard: i. M/s Man Industries (India) Ltd Vs CC (EP), Mumbai (2006 (202) E.L.T 433 (Tri.Mumbai) ii. CC Vs M/s Man Industries (India) Ltd (2007 (216) E.L.T 15 (Bom) iii. M/s Diamond Engineering (Chennai) Pvt Ltd Vs CC(Sea port-Export), Chennai (2013 (288) E.L.T 265 (Tri-Chennai) iv. CC Vs, Tuticorin Vs M/s Tiru Arooran Sugar Ltd (2014 (307) E.L.T 248 (Mad.) v. M/s Parayil Food Products Pvt Ltd (2021 (375) E.L.T 486 (Ker.) vi. M/s Carl Zeiss India Pvt Ltd Vs Commr of Customs & ST, Bangalore (2018 (359) E.L.T 388 (Tri.) vii. Commr of Customs & ST, Bangalore Vs M/s Carl Zeiss India Pvt Ltd (2021 (376) E.L.t 45 (Kar) viii. M/s Mahalaxmi Rubtech Ltd Vs Union of India ix. M/s Parayil Food Products Pvt Ltd Vs Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t drawback Schedule. Further there is no allegation of fraud/ misdeclaration/manipulation against the appellant. 10. As per Section 149 of the Customs Act, 1962 amendment of document is permitted subject to condition that such amendment is allowed on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the cases may be. In Appellant's case, the adjudication authority has not considered whether the documents produced by Appellant are sufficient enough to comply with the provisions under Section 149 of the Customs Act, 1962. The documents which were available on record at the time of export such as Advance Authorization, shipping bills, invoices, input conception certificate... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials are not available". However, in the present case, Appellant had clearly undertaken to payback the drawback amount received in respect of few of exports and in respect of substantial portion of other exports. From the documents available on record, no other benefit has been obtained by the Appellant other than the import of duty free inputs under Advance Authorization. In Appellant's case, genuine reasons and circumstances for not making request for amendment within reasonable time is well explained and in such cases, the Adjudicating authority ought to have considered the issue on merit rather than rejecting the request just on the ground that limitation prescribed under the Circular which is held unsustainable by various High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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