TMI Blog2024 (2) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... r amendment is denied. However as per the finding in the order, when certain omissions were brought to the notice of the Appellant, they have verified the records and rectified the same and therefore it cannot be concluded as they are not diligent in maintaining the records. Thus, the impugned order rejecting the request for conversion of the shipping bill based on the Circular No.36/2010 is set aside. The issue is remanded for De-novo adjudication and adjudicating authority is directed to consider the documents produced by the appellant and to decide whether the appellant is entitled to the benefit of Scheme to which they want to convert their claim. Needless to say before, considering the issue, reasonable opportunity should be extended to the appellant for personal hearing. Appeal is allowed by way of remand. - Hon ble Mr. P. A. Augustian, Member (Judicial) And Hon ble Mrs R. Bhagya Devi, Member (Technical) For the Appellant : Mrs. Rukmani Menon, Advocate For the Respondent : Mr. K. A. Jathin, AR ORDER Per P. A. AUGUSTIAN : Appellant is involved in manufacture and assembly of Spectacle Lens and industrial Metrology Equipment s. One of the div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 can be suggested in accordance with law and till the pendency of the same, an Ordinance can also be issued. No such stand is taken as evident from Ext. P10. I am afraid the action of the respondent cannot be accepted, for, it is an utter violation of statutory provision of Section 149 of the Customs Act. For the reasons assigned, the impugned order Ext. P10, dated 7-7-2020 is hereby quashed. The writ petition is allowed. Respondents are directed to issue no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various schemes is permitted . 6. The Ld. Counsel for the Appellant also draw our attention to the certificate dated 01.12.2020 issued by the Chartered Accountant were certified that the inputs mentioned in the Annexure (consumption statement) have been used in the manufacturing of the resultant export product (finished spectacle lens). Shipping bill wise input consumption details are enclosed and further certify that the assessee has fulfilled the export obligation under the export promotion scheme to which they are seeking conversion. 7. The Ld. Counsel also draw our attention to the certificate issued by Superintendent of Central Tax Range on 01.07.2020. The Ld. Counsel for the Appellant also draw our attention to the communication dated 20.10.2021 and submits the details against each Advance Authorization from September, 2014 to March 2016. The Ld Counsel relied the following 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 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 etc were all produced by the Appellant while requesting for permission. The time limit in the Circular No.36/2010 dated 23.09.2010 was found unsustainable by the Hon ble High Court of Gujrat in the matter of M/s Mahalaxmi Rubtech India Ltd(supra) and Hon ble High Court of Kerala in the matter of M/s Parayil Food Products Ltd (supra). Moreover, even as per Para 5 of the Circular No.36/2010 dated 23.09.2010, the Adjudicating authority is instructed to take due care while allowing conversion to ensure that exporters does not take any benefit of both the schemes. Even as per the decision relied by learned AR in the matter of Anil Sharma(supra) it is held that So far as Advance Authorization Scheme is concerned, the appropriate authority is required to consider after holding appropriate inquiry that the raw material which was imported has only been use ..... X X X X Extracts X X X X X X X X Extracts X X X X
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