TMI Blog2024 (2) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, there is no reason to deny the benefit of the scheme. The error made by the appellant in making the application for conversion before the Commissioner, Nhava Sheva is concerned, the same needs to be ignored in terms of the response given by the Cell at Mumbai, the appellant had made the on line application on 31.03.2021. The appellant had justified the necessity of conversion as they had produced the documents in terms of the Section 149 of the Act which entitles an amendment in the Bill of Entry even after the imported goods have been cleared for home consumption except on the basis of documentary evidence which was in existence at the time the goods were cleared and in the present case it is not that such documents were not in existence at the time of export of goods. Circular was meant to liberalise the migration from one scheme of the Foreign Trade Policy to another and it could not have imposed rigid restrictions which are not contemplated in the parent statute and in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another, Haldiram Foods International Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31.03.2021 along with all supporting documents to the Commissioner of Customs for conversion of Drawback to ROSCTL. After the Covid-19 pandemic was relaxed, the appellant on 11.07.2021 sent a hard copy of all documents. The petitioner attended the personal hearing on 03.09.2021 and also submitted another letter dated 06.09.2021 pointing out that the error came to the notice only on 18.01.2021, while filing for license with the DGFT. The Commissioner by the impugned order rejected the prayer on the ground that the appellant had made the request for amendment after a period of three months which was mandated by the CBEC Circular No. 36/2010-Cus. dated 23.09.2010. Being aggrieved, by the order-in-original dated 04.10.2021, the appellant has filed the present appeal before this Tribunal. 3. Ms. Jyotika Sharma, learned counsel for the appellant submitted that the CBEC Circular dated 23.09.2010 permitted the conversion in accordance with the provisions of Section 149 of the Act on case to case basis on merit provided the documentary evidence which was in existence at the time the goods were exported and that the goods were eligible for the Export Promotion Scheme to which the conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping bills were filed under the Drawback Scheme (Code 19) instead of Drawback ROSCTL Scheme (Code 60) seems to be bona fide in view of the withdrawal of the earlier scheme and introduction of the new scheme on 29.01.2020 made applicable with effect from 07.03.2019. We find merit in the submission of the appellant that they learnt about this clerical error only when they filed for license with the DGFT on 18.01.2021 and, therefore, on 21.01.2021 they submitted the necessary application with supporting documents, which also appear to be made in great hurry and in absence of any assistance from the Customs Broker and they filed the same before the Commissioner of Customs, Nhava Sheva though the Shipping Bill was filed before the ICD, Tughlakabad and hence further delay took place. The appellant acted on the response received from the Cell at Mumbai and submitted on line application on 31.03.2021 on account of pandemic Covid-19 and once the situation normalised, the hard copy of the application was sent on 11.07.2021. 7. We now come to the issue on merits whether rejection of the amendment application on the ground of being time barred as prescribed in the circular is justified. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I 1141-Kerala High Court considered a similar issue and held as under:- 8. For the purpose of issuance of No Objection, provisions of Section 149 of the Customs Act, 1962 envisage the complete procedure for issuance of no objection certificate, i.e. for the purpose of amendment of a bill of entry or a shipping bill only after fulfilling certain conditions in the proviso. xxxx 10. 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 excepting and processing applications for amendment of bills of lading, an amendment to the Principal Act can be suggested in accordance with the law and tell the pendency of the same, an Ordinance can also be issued. 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. 9. In this regard, it is also relevant to take note of the decision of the Tribunal in Man Industries (India) Ltd vs Commissioner of Customs, (EP) 2006 (202) ELT 433 where it has been held that: the statutory right, as also the statutory obligation of the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the application for amendment was made on 21.01.2021 which cannot be said to be an unreasonable delay so as to deny the benefit on merits. Insofar as the second Shipping Bill is concerned, the Let Export Order was issued on 26.11.2020 and the request for conversion was made on 21.01.2021 which was will within a period of three months. The error made by the appellant in making the application for conversion before the Commissioner, Nhava Sheva is concerned, the same needs to be ignored in terms of the response given by the Cell at Mumbai, the appellant had made the on line application on 31.03.2021. The learned counsel for the appellant submitted that the said period needs to be excluded as they had prosecuted the issue in good faith. Therefore, the delay if any, is not substantial to deny the benefit of the scheme to the appellant. We are conscious of the decision of the High Court of Delhi in Commissioner of Customs (Export) Vs. E.S. Lighting Technologies (P) Ltd. 2020 (371) ELT 369 (Del.), where the Court observed that : 6.........Merely because no time limitation is prescribed under Section 149 for the purpose of seeking amendment/conversion, does not follow that r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
