TMI Blog2022 (9) TMI 1583X X X X Extracts X X X X X X X X Extracts X X X X ..... h, even if envisaging clearance from customs authorities for a decision on the closure of the said authorizations is, yet, an event of the future with no relevance on the request made before the competent authority u/s 149 of Customs Act, 1962 and should not have been a criterion for deciding upon the said request. In view of the settled position, elaborated in Haldiram Foods International Pvt Ltd.[ 2020 (12) TMI 1229 - CESTAT MUMBAI] , on the irrelevance of the deadline stipulated in the circular of Central Board of Excise Customs (CBEC) relied upon in the impugned order, we set aside the rejection of the applications for amendment and direct the original authority to decide the matter afresh within the framework of section 149 of Customs Act, 1962 on the propriety of the changes sought for in the shipping bills. Appeal is, accordingly, disposed off. - HON BLE MR JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR C J MATHEW, MEMBER (TECHNICAL) For the Appellant : Shri Ashok Naval, Consultant For the Respondent : Shri Ramesh Kumar, Assistant Commissioner (AR) ORDER PER: C J MATHEW The dispute in this appeal of M/s Seco Tools India (P) Ltd has its genesis in a request of theirs, by let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-TIOL-991-HC-MAD-CUS)] and of the Hon'ble High Court of Madras in Visoka Engineering Pvt Ltd vs. Commissioner of Customs, Chennai-IV [2022-TIOL-227-CESTAT-MAD] wherein it was held that 16 24. The Hon ble Jurisdictional High Court in case of Global Calcium Pvt Ltd Vs Commissioner of Customs, Chennai vide judgement dated 29.6.2017 in CMA No. 875 of 2017 observed as under xxxx 27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. By this Circular, a period of three months is prescribed to file the request for conversion/amendment. Section 149 does not prescribe any time limit for filing an application for amendment of document. No doubt that section 149 of the Customs Act, 1962 would prevail over the Board circular. We hold that request for conversion of Free Shipping Bill cannot be denied as time-barred by resorting to the Board Circular. 17. The Hon ble High Court of Kerala in the case of Parayil Food Products Pvt Ltd Vs Union of India reported in 2020 (10) TMI 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in fulfilment of which the exports were intended and it was merely the absence of any reference to the said scheme of the Foreign Trade Policy in the heading of the shipping bills which, by recourse to section 149 of Customs Act, 1962, was sought to be rectified in the application of the appellants herein addressed to the jurisdictional Commissioner of Customs and which, in turn, was prompted by the notice issued to the appellants herein by the authority empowered under the Foreign Trade Policy (FTP) for remedial action. Besides being a justification for the elapse of time in seeking recourse to section 149 of Customs Act, 1962, the stage in the sequencing offers a clearer perspective of the consequence, if any, of acceptance of the request for amendment. This is an aspect that, of necessity, is to be addressed by us as, even though the ostensible ground for rejection was the threshold bar of limitation prescribed in the impugned circular of Central Board of Excise Customs (CBEC), the discussion in the impugned order did venture to consider the examination norms that exports against free shipping bills are relieved of. 7. Requests for conversion of shipping bills fall into five b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Customs Act, 1962 which is impliedly permissible, as a consequence, subject to the restriction embodied in the proviso. Any amendment, upon authorisation by the proper officer , would have to be incorporated by the person who filed the document(s). The proviso applies specifically to contents of bills of entry and shipping bills in which changes are to reflect only the documents existing at the time of clearance for home consumption/deposit in warehouse or clearance for export, as the case may be. Therefore, denial by recourse to a finding other than on the specific amendment requested by an importer/exporter would be tantamount to traversing beyond the framework of statutory empowerment. 9. Doubtlessly, the physical characteristics of goods covered by bill of entry/shipping bill can be authenticated only in consonance with the report of examination, if any, but that is not the request made by the appellant herein or the cause of rejection adverted by the competent authority. The plea is for alteration of the category of the bills to that of the scheme of export which the appellant claims to have been operating under. A finding on the inappropriateness of the request made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority only upon rejection of redemption under one of the schemes communicated by the licensing authority. Such is not the issue in the present dispute which is solely on the propriety of determining limitation that is not contemplated in the statutory provision. 12. In Terra Films Pvt Ltd, the decision of the Hon ble High Court of Delhi pertained to circular no. 4/2004 dated 16th January 2004 of Central Board of Excise Customs (CBEC) and it was held that 5. From the above, it may be seen that as per Clause B of the circular that the conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed in routine. As regards permitting conversion of shipping bills from one export promotion scheme to another, this clause envisages that such conversion to be allowed only where the benefit of export promotion scheme claimed by the exporter has been denied by DGFT/MOC or Customs due to any dispute. However, in such a case, conversion may be permitted by the Commissioner on case-to-case basis, subject to conditions enumerated in sub--clauses (a) to (e). Even if under Clause A, the request for conversion from one scheme to another was not to be done o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the discretion vested in the proper officer to permit that. Clearly, it is not a right to have the amendments incorporated and the applicant is, therefore, obliged to justify the necessity, in terms of consequential detriment, for invoking the provision. Concomitantly, it devolves on the proper officer to place the applicant on notice of any want that may impede such permission or of any doubts that may be brought to bear on grant of the application and to further issue a reasoned order in the event of rejection. The deployment of the expression document and the appending of proviso is calculatedly significant. Though not one of the enumerations in section 2 of Customs Act, 1962, document is found scattered within several operative provisions, especially in the context of entries, as prescribed, and of assessment, connoting the evidence in support of the contents in the entry under section 46 and section 50 of Customs Act, 1962. Having been specifically defined, and being forms designed for assessment and clearance, bill of entry and shipping bill are not documents as intended in section 149 of Customs Act, 1962; indeed, the distinguishment accorded to these by the proviso argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e General of Foreign Trade could consider extending that privilege to them. Approval of the request would exclude them from the reimbursement, contractually stipulated, in section 75 of Customs Act, 1962 and, therefore, entails recourse to section 149 of Customs Act, 1962. Further enablement for privileges flowing from a scheme, devised under the authority of Foreign Trade (Development Regulation) Act, 1992, would emanate from the flexibility intended by circular no. 36/2010-Cus dated 23rd September 2010 of Central Board of Excise Customs. 12. The imperative of implementing schemes of export promotion under the Foreign Trade Policy even at the cost of foregoing revenue mandates facilitation that may seemingly be in conflict with the remit of the taxing authority; a post-exportation conferment of that escapement is even less likely to facilitated and circular no.36/2010-Cus dated 23rd September 2010 is but a pathway to the larger objectives of governance. It is moot, therefore, if the intent of the circular is to be perceived in its letter, as held by the proper officer , rather than in its spirit as claimed by the appellant. To deduce the propriety of either alternative, we turn to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of such authority, which could be construed as empowerment to enforce restricted applicability, the impugned circular, as well as its predecessor, could not have imposed rigid restrictions that 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. The Tribunal, in re Parle Products Pvt Ltd, also acknowledged this conclusion thus 5.6 We find strong force in the contentions raised by learned Counsel for the appellant that Hon ble High Court of Kerala in the case of Leotex (supra) in para 4 has held that the Board itself had decided to liberalise the provision regarding conversion from one scheme to another, there should not be any reason to allow the same. Consequently, the bar of limitation could be invoked only in the absence of any mitigating circumstances offered up in response to clarification sought by the proper officer from the appellant for an appropriate decision. We are unable to perceive any such considered resolution of the request preferred by the appellant to the Commissioner of Customs. 14. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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