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TMI Blog2024 (3) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... is point of time they approached the Customs authorities with an offer of conversion of draw back benefit with payment of interest and to claim the Advance License Benefit against the exports by requesting for conversion of shipping bills on 23.08.2023. The approach was done after almost two years or more after exports were done and that too after availing draw back benefit. 2. Learned consultant for the appellant has, inter alia, taken various grounds and placed reliance on the case of Nissan Exports vs CC Mundra in which in para 8.1 this bench has permitted amendment of the shipping bills even after three months period from DFIA shipping bills to draw back scheme by noting that Hon'ble Gujarat High Court in the matter of Principal Commissioner of Customs-Mundra vs Lykis Limited as reported in 2021 (377) ELT 646 (Gujarat) has struck down clause 3(a) of the CBEC Circular No. 36/2010-Cus dated 23.09.2021. Vide clause 3(a) C.B.I.C. provided a limitation period of three months for seeking conversion of shipping bills from one scheme to another. They have also relied upon various other case laws to emphasize that conversion by amending of shipping bills has been allowed freely in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Export Order (LEO). b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be. d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion. e) The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/mis-declaration /manipulation has been noticed or investigation Initiated against him in respect of such exports. 11. From the above legal provisions, I find that Commissioner of Customs is the competent authority for conversion of shipping bills in terms of Section 149 of Customs Act, 1962. I further find from above that the conversion may be permitted in accordance with the provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on the basis of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers and all other persons employed in the execution of the GST Acts are, therefore, bound to observe and follow such orders, Instructions and directions of the Board." The revisionary authority, Ministry of Finance, Government of India in the case of M/s. Cheer Sugar, Jaipur, reported in 2011 (273) Ε.Ε.Τ. 470 (G.O.1.), held that: "11. Govt. therefore, is of the considered opinion that clarificatory circulars/instructions/public notices issued from time to time are not mere formalities but are bindings not only for Customs authorities but for the trade also........." 13. I have gone through the impugned Shipping bills and on perusal of the same I find that the submission of the exporter that they have mentioned quantity of raw materials for Intended claim for Advance Authorization is misplaced and far from facts and thus not tenable. I find that quantity mentioned in shipping bills are finished products quantity and they were mentioned as they intended to claim Reward under RODTEP (Remission of duty and taxes on exported products) scheme. 14. I further find that Part-IV of shipping bills contains scheme details. Part- A contains Drawback/ROSL clam and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Shipping bills were not subjected to risk management parameters involving more rigorous examination scheme, being Advance license in the present case, and as such allowing for conversion of such shipping bills from Drawback scheme to Advance license Scheme will be contrary to the provisions of the statute. 19. I further find that Exporter has availed the benefit of Drawback vide the impugned shipping bills. They have declared in their commercial invoices and respective places in the Shipping bills that they intend to claim Draw back. This is not disputed by the Exporter as well. It would be pertinent to refer Clause (e) of Para-3 of Circular No. 36/2010-Cus dated 23.09.2010 which prescribes one of the conditions of conversion of Shipping bills and reads as under- "The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/ mis-declaration /manipulation has been noticed or investigation initiated against him in respect of such exports." 20. It is evident from above that any exporter who has availed benefit of export promotion scheme under which the goods were exported........ is not eligible for conversion of shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India) Ltd. in Para-12.28 of the order has observed that "Be that as it may, before concluding, we are not able to overlook a serious question presented by the pecullar facts of the case before us. In the absence of any period of limitation prescribed in the Section, whether it would mean that the remedy/relief ca be sought for at any time when the Importer/Exporter wake up to realize the mistake or omission. In our opinion, the remedy has to be sought for within a reasonable time. A legal claim cannot be enforced if there is a long delay in asserting the right or the claim." 23. I find from above that Hon'ble CESTAT has also observed that even a legal claim cannot be made after inordinate delay and any legal claim has to be made within reasonable time. I find that in the present case Exporter has exported the goods under impugned shipping bills during September- 2017 to April-2022 and the application for conversion has been filed in September- 2023. I find that Exporter has failed to file the application for conversion of Shipping bills within reasonable time. I rely on decision of Hon'ble CESTAT in the case of M/s Gupta Enterprises Vs. Commissioner of Customs (Sea Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board. This view is supported by series of decisions of the Hon'ble Supreme Court, including the judgment pronounced by the Hon'ble Appex Court in the case of Commissioner Of Customs, Calcutta Vs. Indian Oil Corporation Ltd reported as 2004 (165) E.L.T. 257 (S.C), wherein the Hon'ble apex court has found that : "11. Despite the categorical language of the clarification by the Constitution Bench, the issue was again sought to be raised before a Bench of three Judges in Collector of Central Excise, Vadodara v. Dhiren Chemicals Industries - 2002 (143) E.L.T. 19 where the view of the Constitution Bench regarding the binding nature of circulars issued under Section 378 of the Central Excise Act, 1944 was reiterated after it was drawn to the attention of the Court by the Revenue that there were in fact circulars issued by the Central Board of Excise and Customs which gave a different interpretation to the phrase as interpreted by the Constitution Bench. The same view has also been taken in Simplex Castings Ltd. v. Commissioner of Customs, Vishakhapatnam (2003 (155) E.L.T. 5 (S.C.) = (2003) 5 SCC 528]. 26. I find that Deputy Commissioner (Export), Customs, ICD, Khodiyar h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Gujarat. This court finds validity of condition 3(e) of the aforesaid Circular survives and therefore holds that once a benefit under which shipping bill was filed has been availed, the conversion to any other scheme cannot be allowed. It is thus clear that the same has a bigger objective of atleast giving finality to some extent to decisions earlier taken while exporting, as is the case of the appellants in this matter. This court therefore, finds that once draw back benefit was availed then there was no scope for seeking conversion to any other scheme "And" in relation to mis-declaration clause in 3(e) above being disjunctive as in case later proposition of mis-declaration, manipulation etc., coming into play, the exporter even if has been precluded from availment can still be denied conversion. As facts stated by the learned consultant for the appellants bring out on record that they had availed draw back scheme and offered to pay back the benefit with interest, this court finds that matter falls within the ambit of para 3(e) of the above Circular and the conversion request after having enjoyed the benefit of draw back scheme, and after availing the same, cannot be ..... 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