Custom, Excise & Service Tax Tribunal
M/S. Humboldt Wedag India Pvt. Ltd vs Commissioner Of Customs (Export), ... on 22 November, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/145/2012
(Arising out of Order-in-Original No. 18708/2012 dated 27.4.2012 passed by the Commissioner of Customs (Seaport Export), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Humboldt Wedag India Pvt. Ltd. Appellant
Vs.
Commissioner of Customs (Export), Chennai Respondent
Appearance Ms. Sridevi, Advocate, for the Appellant Ms. Indira Sisupal, AC (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 22.11.2013 Date of Decision: 22.11.2013 Final Order No. 40658/2013 The relevant facts of the case in brief are that the appellant filed Shipping Bill No. 3148506 dated 11.9.2008 under no incentive scheme (Free Shipping Bill) along with ARE1 No. 132 dated 10.9.2008 which was declared in the Shipping Bill. After exportation of the goods, the appellant requested for conversion of the Shipping Bill from free Shipping Bill to DEPB Scheme under CBEC Circular No. 4/2004 dated 16.1.2004 read with Section 149 of the Customs Act, 1962. By the impugned order, the Commissioner of Customs (Exports) rejected the request of the exporter for amendment of the Shipping Bill No. 3148506 dated 11.9.2008 from No Incentive Scheme to DEPB scheme.
2. The learned counsel on behalf of the appellant submits that the Shipping Bill is accompanied with ARE1 issued from the place of manufacturer. She submits that it is clearly revealed from ARE-I that the Central Excise officers have examined the goods and properly sealed as per law. Since the consignment were in proper condition at the time of export and no tampering of seal, therefore the request for conversion of free shipping bill to DEPB should be allowed. She further submits that the Boards Circular No. 6/2002-Cus. dated 23.1.2002 provides that the export goods stuffed and sealed in the presence of customs/central excise officers at the time of clearance from the factory of the manufacturer, no examination is required. She further relied upon the case laws under:-
(a) Gennex Laboratories Ltd. Vs. Commissioner of Customs 2012 (285) ELT 363
(b) Yomika Fabrics Pvt. Ltd. Vs. Commissioner of Customs 2009 (233) ELT 237
(c) Metallic Bellows (I) Pvt. Ltd. Vs. Commissioner of Customs 2008 (228) ELT 479
3. On the other hand, the learned AR on behalf of the Revenue submits that the issue is squarely covered by the decision of the Honble Madras High Court in the case of Commissioner of Customs Vs. Suzlon Energy Ltd. 2013 (293) ELT 3 (Mad.). She submits that in this case the Honble Madras High Court relying on the decision of the Honble Delhi High Court in the case of Terra Films Pvt. Ltd. Vs. Commissioner 2011 (268) ELT 443 (Del.) held that conversion of free Shipping Bills to DEPB scheme would not be allowed without verification of the goods of export and their examination by the customs officers is necessarily required. She further submits that the Boards circular dated 23.1.2002, as relied upon by the learned counsel, would also mention that the examination is required where drawback/DEPB claimed is involved.
4. After hearing both the sides, I find that the main contention of the learned counsel is that the goods were examined by the Superintendent of Central Excise as revealed from the AREI and therefore the decision of the Honble Madras High Court would not applicable. I am unable to accept the submission of the learned counsel. The Board Circular No. 6/2002-Cus. dated 23.1.2002 provides that in the case of export under drawback/DEPB scheme is involved consignments will be examined by the customs officers. It is seen that the adjudicating authority had given finding on this issue as under:-
I find that details of ARE-I No. 132 dated 10.9.2006 were declared in the Shipping Bill itself and formed part of the records containing the Shipping documents. From the ARE-1 No. 132 dated 10.9.2008, I find that Diamond Engineering (Chennai) Pvt. Ltd. Chennai has manufactured the goods for the exporter. The packages were factory sealed and examination report in Annexure C1 was issued by the Superintendent of Central Excise, Perungudi Range IV, Chennai. However, there is no mention either in the ARE-1 or in the Annexure C1 to indicate that the export was under DEPB scheme. I find no declaration made by the exporter in the ARE-1 as to indicate that the export was under DEPB scheme. Also, no Export Incentive Scheme was specified in box No. 6 of the ARE-1 which was verified and certified by the Superintendent of Central Excise (Part A/ Para 3 of ARE 1). Further, para 2.4 of the Boards Circular No. 6/2002 dated 23.1.2002 makes it mandatory for the Customs Examining Officer to subject export consignments to examination for which an exporter wishes to change any of the critical parameters resulting in change of value, DBK, DEPB credit, port etc. That being so, examination by the Central Excise Officer cannot substitute for examination by the Customs officer.
5. The Honble High Court in the case of Commissioner of Customs Vs. Suzlon Energy Ltd. (supra) held that for enabling an exporter to draw the benefit of any scheme, not only physical verification of documents would be required, but also verification of the goods of export and their examination by the customs was necessarily required to be done.
6. In view of the above discussion, I do not find any reason to interfere with the order of the Commissioner. Accordingly, the appeal filed by the appellant is rejected.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 2