Custom, Excise & Service Tax Tribunal
Mr Mrs Bectors Food Specialities Ltd vs C. Ludhiana on 7 February, 2019
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Appeal No. C/61394/2018
Customs, Excise & Service Tax Appellate Tribunal
SCO 147-148, SECTOR-17-C, CHANDIGARH-160017
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Appeal No. C/61394/2018
(Arising out of OIA-17-CSG-COMMR-LDH-CUSTM-2018-7773 dated 20/07/2018
passed by the Commissioner (Appeals) of Central Excise and Service Tax-
LUDHIANA)
Mr. Mrs. Bectors Food Specialities Ltd. : Appellant (s)
Vs
C.C-Ludhiana : Respondent (s)
Represented by:
For Appellant (s) : Shri P. S. Pruthi, Consultant For Respondent (s): Shri Tarun Kumar, AR CORAM :
Mr. Ashok Jindal, Hon'ble Member (Judicial) Date of Hearing/Decision: 07.02.2019 ORDER No.A/60082/2019 Per : Mr. Ashok Jindal The appellant is in appeal against the impugned order wherein their exports to shipping bills under Duty Drawback Scheme were rejected for conversion into under Duty Free Import Authorisation (DFIA) Scheme.
2. The facts of the case are that the appellant is manufacture of Biscuits and Cookies and used to export their goods under DFIA Scheme as well as under Duty Drawback Scheme. As per the Notification No. 31/2013 dated 01.08.2013, the appellant was required to import the inputs actually used in the manufacture of export products should be imported under authorization and inputs actually imported must be used in export of goods. Due to that reason, during the period 13.11.2013 to 20.11.2015, the appellant exported their goods under Duty Drawback Scheme, as there 2 Appeal No. C/61394/2018 was a bar in terms of the Notification No. 31/2013 dated 01.08.2013. The said Notification has been declared ultra virus by the Hon'ble Punjab and Haryana in the case of M/s Pushpanjali Floriculture Pvt. Ltd. Vs. UOI 2016 (340) ELT 32 (P & H). Consequent to the decision of the Hon'ble Punjab and Haryana High Court, the appellant moved an application for conversion of their exports under Duty Drawback Scheme to DFIA Scheme. The adjudicating authority refused to accept the request made by the appellant in terms of CBEC Circular 36/2010-Cus dated 23.09.2010. Against the said order, the appellant is before me.
3. The Ld. Consultant appearing on behalf of the appellant submits that there are certain schemes for making exports, one of the Scheme is DFIA and another Scheme is Duty Drawback. The appellant was exporting their goods under DFIA Scheme, but there was restricted not to avail Scheme as per the paragraph 4 of the said notification, therefore, the appellant was compelled to export their goods under Duty Drawback Scheme. As paragraph 4 of the said notification has been declared ultra virus by the Hon'ble High Court of Punjab and Haryana, therefore, their application for conversion of shipping bills from Duty Drawback Scheme to DFIA Scheme is to be allowed. Moreover, he submits that the condition laid down by the CBEC Circular No. 36/2010 dated 23.09.2010 does not put bar upon the appellant for conversion of shipping bills from Duty Drawback Scheme to DFIA Scheme, the time limit is not applicable.
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Appeal No. C/61394/2018
4. On the other hand, the Ld. AR opposed the contention of the Ld. Consultant and submits that the appellant has not complied with the condition of CBEC Circular No. 36/2010 dated 23.09.2010. Moreover, they have filed application for conversion of shipping bills under Section 149 of the Customs Act, 1962 as there is no mistake apparent on record and the appellant has deliberately filed shipping bills under Duty Drawback Scheme. Therefore, their shipping bills cannot be rectified in terms of Section 149 of Customs Act, 1962. The Ld. AR relied upon the decision of Anil Sharma vs. UOI - 2017 (350) ELT 332 (Guj.) and Suzlon Energy Ltd. 2013 (293) ELT 3 (Mad.).
5. Heard the parties and considered the submissions.
6. On the basis of records placed before me and arguments advanced by both sides, I find that in this case, the sole question arises before me whether the conversion of drawback shipping bills can be allowed to DFIA Scheme or not?
7. Admittedly, at the time of export, the appellant were debarred to file their shipping bills under DFIA Scheme in terms of Paragraph 4 of the Notification No. 31/2013 dated 01.08.2013.
8. For better appreciation, the paragraph 4 of the said notification is extracted herein below:-
"4. Effect of this Notification: Inputs actually used in manufacture of the export product should only be imported under the authorisation. Similarly inputs actually imported must be used in the export product. This has to be established in respect of every Advance Authorisation / DFIA."4
Appeal No. C/61394/2018 The said paragraph 4 of the notification has been declared ultra virus by the Hon'ble Punjab and Haryana in the case of M/s Pushpanjali Floriculture Pvt. Ltd. The effect of the decision of the Hon'ble Punjab and Haryana High Court entitles appellant to file their shipping bills under DFIA Scheme which was not entitled to the appellant in terms of the said notification at the time of export. Therefore, the claim for conversion of shipping bills under Duty Drawback Scheme to DFIA Scheme are within time and cannot be held barred by limitation.
9. Further, the Ld. AR strongly relied on the decision of Anil Sharma vs. UOI - 2017 (350) ELT 332 (Guj.) to say that the application filed by the appellant under Section 149 of the Customs Act, 1962 is not applicable as there is no mistake apparent on record. Admittedly, there is no mistake apparent on record, but, the same shall not take away from the right of the appellant. As appellant was compelled to file Duty Drawback Scheme at the time of export, therefore, the said case is not applicable to the facts of this case. Also, the Ld. AR relied on the decision of the Hon'ble Madras High Court in the case of Commissioner of Customs, Chennai vs. Suzlon Energy Ltd. 2013 (293) ELT 3 (Mad.) to say that the conversion of shipping bills from one Scheme to another Scheme it can be allowed only when the conditions are more stringent at the time of export and conversion sought by the assessee are not stringent. I find that in this case, the conditions for export under DFIA Scheme as well as Duty Drawback Scheme are same, therefore, the appellant has satisfied the decision of the Hon'ble Madras 5 Appeal No. C/61394/2018 High Court in the case of Suzlon Energy Ltd. (supra) and same view has been taken by this Tribunal in the case of Parle Products Pvt. Ltd. Vs. Commissioner of Customs, Nhava Sheva-II 2017 (358) ELT 341 (Tri.- Mumbai). In that circumstances, the appellant is entitled for conversion of shipping bills from Duty Drawback Scheme to DFIA Scheme subject to reversal of benefit taken under Duty Drawback Scheme is paid by the appellant alongwith interest.
In these terms, the appeal is disposed of.
(Dictated & pronounced in the Court) (Ashok Jindal) Member (Judicial) G.Y.