Custom, Excise & Service Tax Tribunal
Isolloyd Engineering Technologies ... vs Commissioner, Customs (Export)-New ... on 23 September, 2022
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
CUSTOMS APPEAL NO. 51039 OF 2020
(Arising out of Order-in-Original No. 7/2020/SUNIL TATED/COMMR/ICD/EXPORT/TKD
dated 24.06.2020 passed by the Commissioner of Customs, Exports, ICD
Tughlakabad, New Delhi)
M/s. Isolloyd Engineering ...Appellant
Technologies Limited,
Punj State Premises, kalkaji Industrial Area,
Kalkaji, New Delhi 110019
VERSUS
Commissioner of Customs, ...Respondent
Exports, Inland Container Depot, Tughlakabad, New Delhi 110020 APPEARANCE:
Shri B.K. Singh & Ms Vandana Singh, Advocates for the Appellant Shri Sunil Kumar, Authorized Representative of the Department CORAM: HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. RAJU, MEMBER (TECHNICAL) Date of Hearing: 15.06.2022 Date of Decision: 23.09.2022 FINAL ORDER NO. 50895/2022 JUSTICE DILIP GUPTA:
This appeal is directed against the order dated June 24, 2020 passed by the Commissioner of Customs, New Delhi1 by which the request made by the appellant in the application dated October 11, 2018 for amendment/ conversion of 14 Shipping Bills from Scheme Code „00‟ (free Shipping Bill involving remittance of foreign exchange) to Scheme Code „11‟ (Concessional Duty Export Promotion Capital Scheme) has been rejected. This order was passed by the Commissioner pursuant to the order dated January 03, 2020 passed by the Tribunal in the earlier round of proceedings at the instance of the appellant.
1. the Commissioner 2 C/51039/2021
2. The appellant is engaged in the business of manufacturing of Fabricated Metal Products, Ceramics Fibre and Products thereof, like Rigid PU Pipe Supports/Panels/Shapes/Sections. It exported the same through the Inland Container Depot2, Tughlakabad and Patparganj.
The appellant was granted a License dated January 19, 2006 known as Export Promotion Capital Goods Scheme License3 for the production of the aforementioned export goods. The appellant imported Capital Goods such as Fully Automatic Roofing Corrugated Sheet Cold Roll Forming Machine with spares & accessories through a Bill of Entry dated February 03, 2006. The appellant claims that the machine was installed at the Factory premises of the appellant in which the export goods were produced and were exported and Installation Certificate showing date of Installation as May 23, 2006 was issued by the Jurisdictional Excise Officer.
3. The appellant started production of goods to be exported with effect from May 23, 2006 and exported the goods. The details of the Shipping Bills are as follows:
Sl. N0. SHIPPING BILL & DATE LET EXPORT ORDER DATE
1. 1619511 dated 03.07.2006 04.07.2006
2. 1673710 dated 18.12.2006 19.12.2006
3. 1697536 dated 26.02.2007 02.03.2007
4. 1720706 dated 04.05.2007 05.05.2007
5. 1811199 dated 28.01.2008 29.01.2008
6. 2023679 dated 11.12.2009 16.12.2009
7. 1671883 dated 15.10.2010 22.10.2010
8. 1776565 dated 08.11.2010 19.11.2010
9. 2275950 dated 19.01.2011 24.01.2011
10. 3566495 dated 06.05.2011 10.05.2011
11. 4503319 dated 12.07.2011 15.07.2011
12. 4979924 dated 12.08.2011 19.08.2011
13. 5585953 dated 26.09.2011 30.09.2011
14. 3917744 dated 11.02.2013 16.02.2013
4. The appellant claims that it approached the Office of the Directorate General of Foreign Trade for redeeming the EPCG License
2. ICD
3. EPCG License 3 C/51039/2021 but the appellant was informed that the Shipping Bills under which the goods were exported were required to be produced. The appellant, thereafter, approached the Customs to include the License Number in the 14 Shipping Bills, but this application was rejected by the Principal Commissioner by order dated April 10, 2019. The relevant portion of the order is reproduced below:
"4.3.1 I find that exporter‟s request for amendment of shipping bills actually tantamount to conversion of Scheme. The Exporter had earlier filed the shipping bills under Scheme Code „00‟ (free shipping bill involving remittance of foreign exchange): and now, the exporter is requesting for issuing certificate of amendment under Scheme Code 11 (Concessional Duty EPCG Scheme). The request has been examined in light of CBEC Circular No. 36/2010- Customs dated 23.09.2010.
4.4.1 I find that the exporter has made the present request for conversion of Shipping Bills on 11.10.2018, which is not within the prescribed period of three month from the date of Let Export Order. The Let Export Orders in the impugned shipping bills are between 04.07.2006 to 16.02.2013. Thus there has been considerable delay in making this request, and no valid grounds have been ascribed for the same. Moreover, I also find that there is no provision for condoning the delay in filing such request. Hence, the request is untenable.
4.5. I find that Circular No. 36/2010-Customs dated 23.09.2010 explicitly highlights that free shipping bills (shipping bills not filed under any export promotion scheme) are subject to „nil‟ examination norms; and therefore, conversion of free shipping bills to EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed."
5. Feeling aggrieved, the appellant filed an appeal before the Tribunal, which was allowed by order dated January 03, 2020 and the relevant observations are as follows:- 4
C/51039/2021
"6. We have considered the rival contentions and perused in the appeal paper book as argued at the time of hearing. First of all, we will address the contention of the Respondent Department that the department officers are bound by the Circular issued by the Department. The sanctity of such Circulars was examined by the Hon‟ble Supreme Court in the case of Bengal Iron Corporation versus Commercial Tax Officer4.
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8. After considering the averments made by the learned counsel also the Departmental Representative, and the precedent decisions of this Tribunal. We are of the considered opinion that the impugned order cannot be sustained and is being set aside. The appeal is allowed by way of remand to the original adjudicating authority for conversion of free shipping bills to EPCG shipping bills. The appellant is directed to provide all the documents so as to prove their claim for exports made under free shipping bill required for conversion thereof to DEEC scheme as the customs have accepted that their documents are not available for carrying out such exercise. This exercise should be completed within three months from the receipt of this order."
(emphasis supplied)
6. After remand, the Commissioner by order dated January 24, 2020 again rejected the request made by the appellant for the following reason:
"19. In spite of the directions of the Hon‟ble Tribunal to produce all documents to prove their claim they didn‟t submit a single document to establish their claim. So the key question whether the goods were exported against the EPCG License granted to the Exporter remains unanswered. Having availed the benefit of duty free imports under the EPCG Scheme the responsibility was squarely on their shoulders to conclusively establish and prove beyond doubt that
4. 1993 (66) ELT 13 (Supreme Court) 5 C/51039/2021 the exports were made in terms of discharge of export obligation under the EPCG License obtained by them."
7. This appeal has been filed to assail the aforesaid order dated June 24, 2020 passed by the Tribunal.
8. Shri B.K. Singh, learned counsel for the appellant submitted that the finding recorded in the impugned order that even if the appellant, despite the specific order passed by the Tribunal, had not provided the documents to prove its claim for conversion of the free shipping bill to the EPCG Scheme, the Commissioner should have obtained the documents from his office and even otherwise, the documents were available in the appeal file.
9. Shri Sunil Kumar, learned authorized representative appearing for the Department supported the impugned order and submitted that as the appellant had not complied with the direction issued by the Tribunal to produce the documents, the Commissioner was justified in rejecting the claim of the appellant.
10. It is not possible to accept submission made by the learned counsel for the appellant. Once there was a positive direction by the Tribunal to the appellant to provide all the documents to prove its claim, it was absolutely necessary for the appellant to submit such documents as these documents were necessary to examine whether the appellant was entitled for conversion of the free shipping bills to EPCG Scheme. It does not lie in the mouth of the appellant to contend that though the Tribunal had directed the appellant to submit documents before the Commissioner to prove its claim, the Commissioner should on his own have called for the documents from his office even if the appellant had failed to produce the documents. 6
C/51039/2021
11. There is, therefore, no infirmity in the order passed by the Commissioner. The appeal is, accordingly, dismissed.
(Order Pronounced on 23.09.2022) (JUSTICE DILIP GUPTA) PRESIDENT (RAJU) MEMBER (TECHNICAL) Archana 7 C/51039/2021 CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH CUSTOMS APPEAL NO. 51039 OF 2020 M/s. Isolloyd Engineering ...Appellant Technologies Limited, Versus Commissioner of Customs, ...Respondent Exports, APPEARANCE:
Shri B.K. Singh & Ms Vandana Singh, Advocates for the Appellant Shri Sunil Kumar, Authorized Representative of the Department CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. P.V.SUBBA RAO, MEMBER (TECHNICAL) Date of Hearing: 15.06.2022 Date of Decision: 23.09.2022 ORDERSHEET Order Pronounced today.
(JUSTICE DILIP GUPTA) PRESIDENT (P.V.SUBBA RAO) MEMBER (TECHNICAL) Archana