Custom, Excise & Service Tax Tribunal
M/S. Saurabh Overseas Traders vs The Commissioner Of Customs on 29 June, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/1329/2012-SM [Arising out of Order-in-Original NO.19/2011 dated 21.2.2011 passed by the Commissioner of Customs (Cochin.] M/s. Saurabh Overseas Traders Mahalinga Complex Opp. Vinayaka Talkies NH 66, Hanglur Post Kundapura Udupi Dsitrict Karnataka State. Appellant(s) Versus The Commissioner of Customs Custom House Cochin. Respondent(s)
Appearance:
Mr. Raghavendra B. Hanjer, Advocate For the Appellant Mr. Mohammad Yousuf, AR For the Respondent Date of Hearing: 24.03.2017 Date of Decision: 29.06.2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20998 / 2017 Per : S.S GARG The present appeal is directed against the impugned order dated 21.2.2012 passed by the Commissioner of Customs whereby the Commissioner of Customs has rejected the request of the appellant for conversion in respect of shipping Bill NO.1660657 dated 26.3.2010.
2. Briefly the facts of the case are that the appellant filed shipping bill No.1660657 dated 26.3.2010 for export of 400 packages of betel nuts ground (Channa), betel nuts splits (fracha) and betel nuts ground (Kandi). In August, 2010, they have requested for amendment of shipping Bill from No Export Incentive to read as no duty drawback and the shipment was allowed under DFIA and VKGUY scheme. The said shipping bill shows the DFIA File No. and VKGUY scheme even though the scheme code shown as No incentive scheme (00). The file was submitted to the Commissioner to consider partys request for amendment/conversion. The reason given by the exporter for conversion of shipping bill to DFIA and VKGUY scheme is that the JDGFT have rejected their claim. They have also stated that after completion of the export obligation, the JDGFT has issued the DFIA. The DFIA licence has been issued by JDGFT, Bangalore on 7.1.2011 whereas the export was effected on 26.3.2010 prior to the issue of licence. The learned Commissioner has rejected the prayer for amendment of the shipping bill to amend the code from 00 to 03 on the ground that conversion of free shipping bill into an advance licence shipping bill is not possible as per Circular No.4/2004 dated 16.1.2004. Further the shipping bill was filed on 26.3.2010 and the request for conversion was made only on 5.8.2010. He has also held that the request for change from one scheme to another scheme cannot be termed as amendment in shipping in terms of Section 149 of the Customs Act, 1962. He has further observed that the appellant has filed shipping bills under No incentive scheme, the examination norms prescribed for scheme bills cannot be applied. The export was effected on 26.3.2010 prior to the DFIA licence and hence the benefit of the scheme cannot be given to the appellant.
3. On the other hand, the learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the provisions of the Act as well as the export incentive schemes. He further submitted that the impugned order has been passed without issuance of show-cause notice and therefore the impugned order is completely vitiated by law. He further submitted that the appellant had specifically claimed the benefit of DFIA scheme and VKGUY scheme at the time of export and had specifically mentioned the DFIA file number and also claimed VKGUY scheme in all the export documents. However, the Custom House Agent of the appellant due to oversight had mentioned the Code No. as 00 instead of 03 which is a bona fide mistake and can be rectified under the provisions of Section 149 of the Customs Act. For this submission, he relied upon the decision of the Mumbai Tribunal in the case of Mahindra and Mahindra Ltd. vs. CCE (Import) reported in 207 (215 ELT 385. He also relied upon the decision of the Mumbai Tribunal in the case of Polydrugs Laboratories Pvt. Ltd. vs. CC (General) Mumbai: 2015 (317) ELT 271 (Tri.-Mum. In addition to this decision, the appellant has further relied upon the following decisions:
* Union of India & Others vs. Madhumilan Syntex Pvt. Ltd.: 1998 (35) ELT 349 (SC) * Dharampal Satyapal Ltd. vs. CCE: 2015 (320) ELT 3(SC) * Metallic Bellow (I) Pvt. Ltd. vs. CC (Exports), Nava SEva: 2008 (228) ELT 469 (Tri.-Mum.) * CC (Exports) vs. Metallic Bellows (I) Pvt. Ltd.: 2009 (241) ELT 181 (Bom.).
3.1 Learned counsel further submitted that appellant had an intention to claim the benefit of export incentives at the time of export of goods itself which clear is from the DFIA file number and VKGUY scheme mentioned on the shipping bill. He also submitted that the appellant had applied for DFIA licence for import of goods against exports and Chapter 4.12 of the Foreign Trade Policy 2009-14, which provides for export of goods after filing application for DFIA licence and mere mentioning of DFIA file number is sufficient to claim the export incentive benefit. Learned counsel further submitted that even though the DGFT had initially rejected the DFIA licence but the same was issued after clarification by the appellant and once the licence is granted, it takes effect from the date of filing of the application. The appellant simultaneously claimed two export incentives viz., DFIA scheme and VKGUY scheme in respect of the exports made under the Shipping Bill No.1660657 dated 26.3.2010. The DGFT has accepted the clarification given by the appellant and had issued a certificate under VKGUY scheme and also the licence under DFIA scheme. Under these circumstances, the customs department should not have rejected the amendment application. He also submitted that DGFT had already accepted the exports made under DFIA scheme and issue licences. He further submitted that there is no time limit for filing of amendment of document under Section 149 of the Customs Act. For this submission, he relied upon the following decisions:
* VRA Cotton Mills Pvt. Ltd. vs. CC, Jamnagar (Preventive): 2014 (309) ELT 100 (Tri.-Ahmd.) * Diamond Engineering (Chennai) Pvt. Ltd. vs. CC (Seaport Export), Chennai: 2013 (228) ELT 265 (Tri.-Chennai.)
4. After considering the submissions of both the parties and perusal of the documents on record as well as the various judgments relied upon by the appellant, I find that the appellant has claimed the benefit of DFIA scheme and VKGUY scheme at the time of export and has specifically mentioned the DFIA file number and also claimed VKGUY scheme in the shipping bills as well as in the invoices. But due to oversight and mistake on the part of Custom House Agent, who has mentioned the code as 00 instead of 03 will not disentitle the appellant to claim the benefit of export incentives provided under the scheme. Further, I also find that DGFT has accepted the exports made under DFIA scheme and issued the licences after accepting the clarification given by the appellant and once they have been issued the certificate under the VKGUY scheme and the licence under DFIA scheme, then the Customs Department should not have rejected the amendment application which is only a procedural formality. Further, it is well settled law that the procedures are meant for furthering the justice and not to hamper them. It can be seen that the amendment of shipping bill is permitted in case such amendment is on the basis of documentary evidence which is in existence at the time of export of the goods whereas in the present case, the shipping bills as well as the invoices clearly mentions regarding the filing number of DFIA licence and VKGUY scheme. Further, I find that the learned Commissioner has failed to note that the Customs Officers had certified and registered the VKGUY script issued in respect of the same shipping bill (even though the shipping bill contained the code as 00). The different stand taken in respect of DFIA licence is not justified as there was material difference in respect of VKGUY and DFIA. Therefore, in view of my above discussions, I am of the considered view that the impugned order denying the amendment in the shipping bill is not sustainable in law in view of the decisions cited above and therefore, I set aside the impugned order by allowing the appeal of the appellant with consequential relief, if any.
(Order was pronounced in open court on 29.06.2017.) S.S GARG JUDICIAL MEMBER rv 2 1