Custom, Excise & Service Tax Tribunal
M/S Gennex Laboratories Ltd vs Commissioner Of Customs on 21 February, 2012
IN THE ,CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, FKCCI COMPLEX, K.G. ROAD,
BANGALORE 56009.
DATE OF HEARING : 21/2/2012
DATE OF DECISION : 21/2/2012
Customs Appeal No. 1530 of 2011
(Arising out of the Order No. S/26/Misc/19/2011-Cus (Tech) dated 1.4.2011, passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad)
For approval and signature:
Honble Shri P. G. Chacko, Member (Judicial)
Honble Shri B.S.V. Murthy, Member (Technical)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? No
3. Whether Their Lordships wish to see the fair copy of the Order? Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
M/s Gennex Laboratories Ltd. Appellant
Versus
Commissioner of Customs, Respondent
Hyderabad.
Appearance Shri T. Jagapathi Rao, Advocate for appellant Shri M. M. Ravi Raj, Assistant Commissioner (AR) for respondent CORAM : Honble Shri P. G. Chacko, Member (Judicial) Honble Shri B.S.V. Murthy, Member (Technical) ORDER No..Dated 21/2/2012 [Order per: B. S. V. Murthy]: This appeal is directed against the order of the Commissioner refusing to consider request for conversion of two Free Shipping Bills into Export Promotion Scheme Shipping Bills. The order was communicated to the appellant by the Additional Commissioner (Customs). The appellant is engaged in the manufacture of Bulk Drugs and obtained several Advance Licence/Authorization under Advance Licence Scheme and out of 52 Shipping bills, they omitted to declare Advance Authorization number in two Shipping Bills only. Advance Authorization number is required to be declared in the Shipping bills for the purpose of correlation of Export to the concerned Advance Authorization. Because of this omission, in respect of these two exports, the redemption of the Advance Authorization to be done by the DGFT could not be completed. The application made for conversion of Free Shipping Bills into Export Promotion Scheme Shipping Bills has been rejected.
2. The learned counsel for the appellant submitted that the goods were removed from the appellants factory to the Container Freight Station (CFS), Hyderabad for export. For this purpose, the appellant had followed ARE-1 procedure. It was submitted that in the ARE-1, the Central Excise officers had certified that the goods were stuffed into the containers in their presence and certified description and value of the goods in ARE-1 form. Further in the ARE-1, there was also declaration that the appellant was making the export in discharge of export obligation under quantity based Advanced Licence. The certification by the Central Excise authority, the description and value of the goods in the ARE-1; the declaration in the ARE-1 and the fact that the consignment was not opened for physical examination by the Customs authority since the same was stuffed in the presence of the Central Excise officers shown that in this case unlike a Free Shipping Bill, the consignment has not been exported without examination. Further, he also drew our attention to the Boards Circular No. 36/2010-Cus dated 23.9.2010 and submits that conversion has to be allowed subject to the conditions therein. The conditions given are that the examination report and other endorsement on export documents prove the fact of export; on the basis of documents, it can be verified all the conditions of the scheme are fulfilled and no fraud, etc. has been committed. It was submitted that there was no communication in the rejection order that they have not fulfilled the conditions in the Boards circular and in view of the facts submitted, the exporter has fulfilled all the conditions and therefore, permission should have been granted.
3. The learned Assistant Commissioner (AR) on behalf of the Revenue submits that the Shipping Bill does not have all the requisite details and because of the ERE-1 procedure has been followed, conversion cannot be allowed.
4. We have considered the submissions made by both sides. We find that, as submitted by the learned counsel, the description of the goods, value and the fact that export was being made to fulfill the export obligation have been made in the ARE-1 form and the certification by Central Excise officers based on which the goods were allowed to be exported without examination would make it clear that in this case, there is no dispute as regards description, value and fact that goods were being exported for fulfillment of export obligation. There is no allegation of fraud against the assessee and there is no allegation of manipulation also. In fact, the decision does not indicate as to why the request has been refused. We find that the essential requirements in the Boards Circular for conversion of Shipping Bills from one scheme to another have been fulfilled by the appellant. Further, we also find that a similar issue had come up before the Tribunal in the case of Kiran Pondy Chems Ltd. Vs. Commissioner of Customs, Chennai [2006 (203) E.L.T. 588 (Tri.-Chennai)] and in that case also, the conversion was allowed by the Tribunal on the ground that in the ARE-1 form, there was a certification from the Superintendent certifying that the export took place under his supervision and the documents were existing at the time of export. It is to be noted that when this decision was rendered the Boards circular which is much more liberal with regard to conversion of Free Shipping Bill to Export Promotion Shipping Bill was not here and circular issued in 2004 had laid down much stricter norms. In view of the discussion above, the issue in the present case is covered by decision in the case of Kiran Pondy Chems Ltd. (supra). Therefore, we allow the appeal and direct the Commissioner of Customs to allow conversion of the Free Shipping Bills to the Export Promotion Scheme Shipping Bills as requested.
(Operative part of this order was pronounced in court on 21.2.12)
(B.S.V. Murthy) (P. G. Chacko)
Member (Technical) Member (Judicial)
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