Custom, Excise & Service Tax Tribunal
Ms Yash Pakka Limited vs C.C. Lucknow on 23 August, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Customs Appeal No.70065 of 2022
(Arising out of Order-in-Original No.01/Tech/2021 dated 10/02/2021 passed
by Commissioner of Customs (Preventive), Lucknow Uttar Pradesh)
M/s Yash Pakka Ltd.
(Formerly known as M/s Yash Papers Ltd.), .....Appellant
(Yash Nagar, Darshan Nagar, Faizabad-224125)
VERSUS
Commissioner of Customs (Preventive),
Lucknow ....Respondent
(5th Floor, Kendriya Bhawan, Sector-H, Lucknow-226001) APPEARANCE:
Shri Amit Awasthi, Advocate & Shri Ashish Kumar Shukla, Advocte for the Appellant Shri Sandeep Pandey, Authorised Representative for the Respondent CORAM: HON'BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70052/2023 DATE OF HEARING : 23 August, 2023 DATE OF DECISION : 23 August, 2023 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Original No.01/Tech/2021 dated 10/02/2021 passed by Commissioner of Customs (Preventive), Lucknow, Uttar Pradesh. Vide the impugned order Commissioner has rejected the request made by the appellant in terms of Section 149 of the Customs Act, 1962 for conversion of that free shipping bills into drawback shipping bills by observing as follows:-
"Clearance of goods is being permitted mostly on the basis of self declaration made by the exporter on the shipping bills. Such self assessment scheme necessarily casts the responsibility on the 2 Customs Appeal No.70065 of 2022 exporter to make up his mind at the time of filing shipping bills as to which promotion scheme he likes to avail. Section 149 of the Customs Act interalia provides for amendment of shipping bills after export of the goods only on the basis of documentary evidence which was in existence at the time when the goods were export. The party have not given any reason beyond their control due to which they failed to comply with provisions of Rule 13 (1) (a) of Drawback Rules. Therefore, in the light of above discussions, I find that drawback on the basis of said free shipping bills cannot not be allowed."
1.2 The Tribunal has allowed the Early Hearing Application in the present matter vide Miscellaneous Order No.70062/2022 dated 03.08.2022.
2.1 Appellant is manufacturer and exporter of paper and paper products classifiable under Chapter 48. During the period from 01.07.2017 to 01.08.2018 they have exported their goods against free shipping bills. For the period prior to and post the above stated period they had exported their goods under claim of drawback by filing the Drawback Shipping Bills. Drawback has been allowed in respect of these shipping bills. 2.2 Subsequently, appellant made a request on 07.12.2019 to the jurisdictional Assistant Commissioner for conversion of free shipping bills filed during the afore stated period to drawback shipping bills in terms of Section 149 of the Custom Act, 1962. They also filed the similar request before the Commissioner on 21 December, 2020.
2.3 The request made has been rejected by the Commissioner by the impugned order without affording any opportunity for hearing to the appellant.
3.1 We have heard Shri Amit Awasthi learned Advocate appearing for the appellant and Shri Sandeep Pandey learned Authorized Representative appearing for the respondent. 3.2 Arguing for the appellant learned Advocate submits that ➢ in terms ---- and ➢ no opportunity of personal hearing was afforded by the Commissioner to the appellant for explaining their case, 3 Customs Appeal No.70065 of 2022 and hence this order has been passed in violation of the principles of natural justice.
➢ the decision on this ground alone cannot be sustained. ➢ They are having all the documents required in terms of proviso to Section 149 for proving that the conversion can be allowed from free shipping bills to drawback shipping bills.
➢ on sample bill basis, he took us through some of the documents.
3.3 Learned Authorized Representative has reiterates the findings recorded in the impugned order.
4.1 We have considered the submissions alongwith the submissions made in the appeal and during the course of argument.
4.2 Rejecting the request made by the appellant for conversion of free shipping bills to drawback shipping bills, Commissioner has in the impugned order observed as follows:
"I observe that the party filed the application for conversion of Free Shipping Bills to Drawback Shipping Bills after the lapse of considerable time i.e. more than 03 years. They failed to provide any cogent reason of so much delay in filing the application. The reason forwarded by the party i.e. ambiguity in GST Laws at time of filing Shipping Bills, is not convincing in as much as GST laws regarding export benefits were transparent since its inception and there was no ambiguity about the drawback provisions. the party is a reputed company have annual export turnover of about 40 crores. they were capable of taking services of tax experts if at all required in this regard. they may also seek guidance of department if any ambiguity was in their mind. But the party has not submitted any documentary evidence in this regard. Thus, I find that the reason submitted by the party for not effecting said export under drawback, is not convincing. I observe that para 3 9a) of Circular No 36/2010-Cus dated 23.09.2010 allows conversion of shipping bill from schemes involving rigorous examination to schemes involving less rigorous examination subject to condition that conversion is 4 Customs Appeal No.70065 of 2022 made by the exporter within three months from the date of Let Export Order. Conversion of Free Shipping Bills to Drawback Shipping Bills also fall in the same category i.e. from the schemes involving more rigorous examination to scheme involving less rigorous examination. Free Shipping bills are subject to Nil examination norms whereas Drawback shipping bills are subject to 10% examination norms in terms of Circular No 6/2002_Cus dated 23.01.2002. Accordingly, time limit for filing application for conversion of Free Shipping Bills to Drawback shipping Bills may not be unlimited and there should be a reasonable time period for filing the application. I find that the party failed to provide any plausible reason for such a long delay i.e. more than 03 years in filing the application which was beyond his control.
I further observe that Rule 13 (1) (a) of Customs and Central Excise Duties Drawback Rules, 2017 envisages some Statement/ declaration to be made by the exporter on exports affected by them under drawback scheme. the party has not filed any such Statement/ declaration at the time of export. the different reasons submitted by the for delay in filing the application before this office and before Deputy Commissioner, ICD panki/ JRY prove that they had no intention of applying for drawback at the time of export of goods. Thus, I find that filing of free shipping bills was done consciously to avoid required under Rule 13 (1)(a) of the Customs and Central Excise Duties Drawback Rules, 2017 and it was not a matter of confusion owing to implementation of GST.
Clearance of goods is permitted mostly on the abscess of self declaration made by the exporter on the shipping bills. Such self assessment scheme necessarily casts the responsibility on teh exporter to make up his mind at the time of filing shipping bills as to which promotion scheme he likes to avail. Section 149 of the Customs Act inter alia provides for amendment of shipping bills after export of goods only on the basis of documentary evidence which was in existence at the time when the goods were exported. The party have not given any reason beyond 5 Customs Appeal No.70065 of 2022 their control due to which they failed to comply with provisions of Rule 13 (1) (a) of Drawback Rules. Therefore, in the light of above discussions, I find that drawback on the basis of said free shipping bills cannot be allowed."
4.3 Section 149 of the Customs Act is reproduced as under:-
Section 149. Amendment of documents. -
Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended 1 [in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed]:
Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.
Provided further that such authorisation or amendment may also be done electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria:
Provided also that such amendments, as may be specified by the Board, may be done by the importer or exporter on the common portal.
4.4 Proviso to above Section clearly provides that conversion of the shipping bill subsequent to exportation of the goods can be permitted on the basis of documents that were in existence at the time of exportation of the goods. Commissioner has in the impugned order without allowing any opportunity to appellant to explain their case rejected their application for conversion of free shipping bills to drawback shipping bills. From the impugned order it is evident that the Commissioner has been guided by the delay in filing the request under section 149 to reject the same.
Section 149 do not provide for any time limit for making the request for conversion. In a similar case of Autotech Industries 6 Customs Appeal No.70065 of 2022 (India) Pvt. Ltd. [2022 (380) E.L.T. 364 (Tri. - Chennai)] tribunal while permitting the conversion has negated all the grounds stated by Commissioner in his order for not allowing the conversion. The said observations are reproduced below:
"13. The appellant has made request for conversion of the shipping bills vide two letters as mentioned above. In the letter dated 25-1-2016, it is explained by them that drawback has been inadvertently not claimed by them while filing the shipping bills. In para 3 of the reply to the Show Cause Notice the reason for omitting to claim drawback by filing drawback shipping bills is explained by the appellant as under :-
"The noticee have been exporting goods from 1998 onwards. During 2014-15, they faced difficulties in competing in the international market due to escalation in cost of production and competition. In order to reduce the cost of production, so as to complete in the international market, they hired auditors to conduct audit for the said purpose. From such audit only they came to know that they have been exporting taxes also in addition to exporting the goods which otherwise, could have been got back as duty drawback. As per drawback sub-serial No. 8409, subject goods are eligible for 2% drawback."
14. On realizing the mistake/omission, the appellants vide their letters dated 9-10-2015 and 25-1-2016, requested the Commissioner to convert the Free Shipping Bills to Drawback Shipping Bill so as to sanction the drawback for the same. In the Annexure to the letter dated 9-10-2015, they have requested for conversion of Shipping Bills from the period January, 2012 to December, 2014. The details in the Annexure are as under :-
Annexure Period INR FOB Value INR DBK
of Export Amount
1. January, 2012 to March, 2012 3,75,95,276.88 7,51,906.00
2. April, 2012 to June, 2012 4,68,16,310.85 9,36,320.00
3. July, 2012 to September, 2012 3,16,22,695.08 6,32,451.00
4. October, 2012 to December, 4,09,40,845.31 8,18,817.00
2012
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5. January, 2013 to March, 2013 6,76,08,335.91 13,52,166.00
6. April, 2013 to June, 2013 6,39,40,642.06 12,78,819.00
7. July, 2013 to September, 2013 9,08,81,484.78 17,56,341.00
8. October 2013 to December, 8,80,73,595.68 15,00,140.00
2013
9. January, 2014 to March, 2014 7,45,32,856.45 10,75,200.85
10. April, 2014 to June, 2014 8,52,79,400.78 14,51,424.00
11. July, 2014 to September, 2014 9,39,08,202.03 15,96,443.00
12. October, 2014 to December, 5,29,61,530.50 9,40,536.00
2014
15. In the subsequent letter dated 25-1-2016, the appellant has included the Shipping Bills from the year 2000 to 2011 also. The details of the annexure are as under :-
Annexure Period INR FOB Value INR DBK
of Export Amount
1. For 2000 - 2001 Invoices 46,685,572.50 887,026.00
2. For 2002 - 2003 Invoices 61,438,095.68 1,167,319.00
3. For 2003 - 2004 Invoices 341,033,124.36 6,479,534.00
4. For 2004 - 2005 Invoices 172,758,600.00 3,282,413.40
5. For 2005 - 2006 Invoices 513,563,926.05 9,757,709.00
6. For 2006 - 2007 Invoices 335,911,765.83 6,382,316.00
7. For 2007 - 2008 Invoices 600,337,073.14 11,406,412.00
8. For 2008 - 2009 Invoices 342,435,776.37 6,506,279.00
9. For 2009 - 2010 Invoices 402,037,449.91 7,638,718.00
10. For 2010 - 2011 Invoices 458,249,510.96 8,706,737.00
11. For 2011 - 2012 (Upto 253,438,788.39 4,815,328.00
Dec., 12)
12. January, 2012 to March, 37,595,276.88 7,51,906.00
2012
13. April, 2012 to June, 2012 4,68,16,310.85 9,36,320.00
14. July, 2012 to September, 3,16,22,695.08 6,32,451.00
2012
15. October, 2012 to 4,09,40,845.31 8,18,817.00
December, 2012
16. January, 2013 to March, 6,76,08,335.91 13,52,166.00
2013
17. April, 2013 to June, 2013 6,39,40,642.06 12,78,819.00
18. July, 2013 to September, 9,08,81,484.78 17,56,341.00
2013
19. October, 2013 to 8,80,73,595.68 15,00,140.00
December, 2013
20. January, 2014 to March, 7,45,32,856.45 10,75,200.85
2014
21. April, 2014 to June, 2014 8,52,79,400.78 14,51,424.00
22. July, 2014 to September, 9,39,08,202.03 15,96,443.00
2014
8
Customs Appeal No.70065 of 2022
23. October, 2014 to 5,29,61,530.50 9,40,536.00
December, 2014
4,302,050,859.59 81,120,455.25
16. It is stated in these letters that they have produced the necessary documents in the nature of Shipping Bill, ARE-I, BRC etc. In the impugned order one of the reasons for rejecting the request is that the documents at the time of exports are not available. However, there is no such allegation raised in the Show Cause Notice which was issued on the basis of these letters. In the Show Cause Notice, the only ground raised is that the request for conversion is time barred.
17. The only requirement under Sec. 149 to allow amendment is that the exporter has to produce documentary evidence which was in existence at the time of export. The department does not specifically dispute the export of goods. The appellants have furnished copies of Shipping Bills, BRC and ARE-1. These documents are sufficient to prove that goods manufactured by them using imported inputs were exported. The ARE-1 document would show that the goods have been removed from the factory for export after it has been examined/verified by the Superintendent of Central Excise. The reverse side of ARE-1 inter alia reads as under :-
"Certified that I have opened and examined the packages No. 5/12 and found that the particulars stated and the description of goods given overleaf and the packing list (if any) are correct and that all the packages have been stuffed in the container No. NIL with marks and the same has been sealed with Central Excise Seal Lead Seal."
18. the above document would establish the description, quantity of the goods exported. The Bank Realization Certificate (BRC) would prove that consideration for the export has been received.
19. The Learned AR has argued that the documents are not available with the department and that it is usually stored only for five years. As per Sec. 149, the requirement is not that the documents should be available with the department. It merely 9 Customs Appeal No.70065 of 2022 states that the exporter has to furnish documentary evidence which were in existence at the time of exports. In the case of M/s. Hewlett Packard Enterprises which is referred by us later, this point was discussed in para 12 and 13 of the judgment. The contention of the Revenue that the documents should be available with the department was not accepted by the Hon‟ble High Court. The proviso gives an opportunity to the exporter/importer to furnish documents which were in existence at the time of export/import and get the error rectified. We therefore hold that the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable.
20. We may now address the issue of limitation which is the main ground for rejecting the request for conversion of free shipping bills to drawback shipping bills. The request for conversion/amendment of shipping bill is made under Section 149 of the Customs Act, 1962. This section does not prescribe any time limit for filing an application for amendment of shipping bill. The said section reads as under :-
"149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended :
Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be".
21. It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, as already discussed, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported.
10Customs Appeal No.70065 of 2022
22. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the Learned Counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that Section 149 of Customs Act, 1962 does not prescribe any time limit.
23. The jurisdictional High Court in the case of M/s. Hewlett Packard Enterprises v. Joint Commissioner of Customs - 2021 (375) E.L.T. 488 observed that the proviso in Section 149 permits amendment even after clearance for home consumption, if contemporaneous documents to establish the export are supplied by assessee. In the said case, the writ petitioner imported goods during the period 24-7-2019 to 26-7-2019 by filing 17 bills of entry. The invoices contained an error while mentioning the unit price of the imported products which came to be perpetrated in the Bill of Entry as well. On realizing the error they approached the Customs authorities seeking amendment under Section 149 of Act ibid. The amendment sought was rejected on the ground that the imported goods have already been cleared for home consumption. On 17-10-2019, the petitioner made a further request to which the officer vide communication dated 31-10-2019 referred to the judgment of Hon‟ble Supreme Court in the case of ITC Ltd. v. CCE, Kolkata-IV
- 2019 (368) E.L.T. 216 and informed that petitioner could file refund for the excess customs duty paid. Yet another request was made on 21-11-2019 and documents in the nature of (i) Price list, (ii) Purchase order inter se the petitioner and its supplier‟s reflecting the correct unit price (iii) original invoices showing the error (iv) purchase order (v) remittance report on 3-1-2020 order was submitted. However, the request was rejected once again. The Hon‟ble Court held as under :-
"11. Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply 11 Customs Appeal No.70065 of 2022 sufficient evidence by way of documents that were „in existence‟ at the time of the goods were cleared, deposited or exported to establish the error.
12. The lis in this matter revolves around the interpretation of the phrase „in existence‟, as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, „on record‟ that such amendment could even be considered.
13. I cannot agree. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were „in existence‟ at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually „in existence' is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being „in existence‟ at the relevant time to evidence an error sought to be amended.
14. In the light of the discussion as aforesaid, the rejection of the request for amendment by the respondent is set aside to be re-done de novo. This writ petition is allowed."
24. The Hon‟ble jurisdictional High Court in the case of Global Calcium Pvt. Ltd. v. Commissioner of Customs, Chennai vide judgment dated 29-6-2017 in CMA No. 875 of 2017 observed as under :-
1. After some arguments, Mr. Derrick Sam, seeks to withdraw the captioned appeal. Learned Counsel, however, says that he has only one apprehension, which is, that the Adjudicating Authority may subject the claim for duty drawback to the time limit of three months provided in the Circular No. 36/2010-Cus., dated 23-9-2010 (in short, "2010 Circular").12
Customs Appeal No.70065 of 2022
2. According to us, this apprehension is misplaced, as in paragraph 6 of the order, the Tribunal has, clearly, stated that "the time bar provision will not apply in this matter".
3. Needless to say, since, the Revenue has not come up by way of cross objection, they cannot raise any cavil about limitation of three months prescribed in the Circular.
4. We may also indicate that neither Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, "the Act") prescribes, any time limit for processing the claim of duty drawback.
4.1 Furthermore, Mr. Chopda, has not been able to show any other provision in the Act or, the Rules framed thereunder, which provide for a time limit for processing the claim lodged for duty drawback.
5. As indicated above, the Tribunal has not accepted the stand of the Revenue that the Assessee‟s claim can be subject to time limit, as provided in the 2010 Circular.
6. Accordingly, the appeal is dismissed as withdrawn. Resultantly, pending application shall stand closed. There shall, however, be no order as to costs.
25. In the above judgment, the Hon‟ble High Court has referred to the Board Circular, Section 149 of Customs Act, 1962 and Section 12(1)(a) of Drawback Rules and opined that the apprehension of the Counsel for petitioner that the request for conversion would be subject to scrutiny on the ground of limitation is for no reason.
26. The Hon‟ble High Court of Delhi in the case of Dimension Data India Pvt. Ltd. v. Commissioner of Customs - 2021 (376) E.L.T. 192 (Bom.) has examined the very same issue. In the said case, the Bills of Entry dated 15-3-2019 to 25-4-2019 were sought to be amended. During internal audit, the petitioner realized that it had made inadvertent typo error at the time of filing the Bill of Entry by incorrectly declaring the CTH as 8517 69 90 instead of correct CTH 8517 69 30. For the goods under CTH 8517 69 30, the rate of duty is NIL whereas in respect of 13 Customs Appeal No.70065 of 2022 goods under other heading, the rate of duty is 20%. The error resulted in payment of excess duty to the tune of Rs. 14,50,01,413/-. Immediately, on detecting the error, a letter dated 7-6-2019 was submitted requesting to correct the bill of entry. The request was declined. The Hon‟ble High Court referred to various decisions including the decisions in Hewlett Packard Enterprises (supra) and Usha International Ltd. v. Assistant Commissioner - 2019 (365) E.L.T. 56 (Mad.). The relevant paras read as under :-
"17. The Learned Counsel for the petitioners submits that the mistake in adopting the correct classification for the purpose of assessment can be rectified under Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962 a proper officer in his discretion may authorise any document to be presented. Section 149 of the Customs Act, 1962 reads as under :-
"Amendment to Documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion authorise any document, after it has been presented in the Customs House to be amended :
Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be."
18. In WP Nos. 18891 to 18893 of 2017, this High Court by its decision dated 25-7-2017 has held that the only embargo under Section 149 of the Customs Act, 1962 is that a person seeking relief cannot rely upon a documentary evidence, which came into existence after the goods were cleared, deposited or exported, as the case may be.
xx xx xx 14 Customs Appeal No.70065 of 2022
26. With these observation, the above writ petitions are partly allowed with a direction to the 1st respondent or any other officer authorised under the Act :
(i) to pass a speaking order in respect of assessment made in the 23 and 9 bills of entries of the respective petitioner under Section 17 read with proviso to Sections 149 and 154 of the Customs Act, 1962 within a period of six month from the date of this order after giving adequate opportunity to the petitioners to establish the classification of imported wall fan under sub- heading 8414 51 90 following the principle [it] of natural justice.
(ii) Refund any will be subject to the petitioner satisfying the test of unjust enrichment."
27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. The relevant paras 3 and 4 of the Board Circular No. 36/2010 has already been reproduced in para 8 above. By this Circular, a period of three months is prescribed to file the request for conversion/amendment. Section 149 does not prescribe any time limit for filing an application for amendment of document. No doubt that Section 149 of the Customs Act, 1962 would prevail over the Board circular. Further, Rule 12(1) of the Drawback Rules,1995 which lay down the procedure to claim drawback also allows filing of belated declaration to claim drawback if the Commissioner is satisfied that the failure to file the declaration was due to reasons beyond the control of exporter. The Rules also does not limit the time. We have to hold that the request for conversion of Free Shipping Bill cannot be denied as time-barred by resorting to the Board Circular.
28. Be that as it may, before concluding, we are not able to overlook a serious question presented by the peculiar facts of the case before us. In the absence of any period of limitation prescribed in the section, whether it would mean that the remedy/relief can be sought for at any time when the Importer/Exporter wake up to realize the mistake or omission. In our opinion, the remedy has to be sought for within a reasonable 15 Customs Appeal No.70065 of 2022 time. A legal claim cannot be enforced if there is a long delay in asserting the right or the claim.
29. The duty drawback or drawback is a fundamental principle of international trade law and policy under which the duties, taxes and fees paid on imported inputs which are used for manufacture of goods and then exported are refunded. This is allowed in the nature of export promotion scheme and the intention is to eliminate the recovery of such costs (duty, taxes and fees) on the export goods in the international market. Chapter X of The Customs Act, 1962 provides for the law relating to drawback. Sections 74 and 75 deals with two types of drawback. Section 74 of the Chapter speaks about drawback allowable on export of duty paid goods. Section 75 deals with drawback of imported materials used in the manufacture of goods which are exported which would be relevant for the case on hand. Sub-section (2) of this section lays down that Central Government may make rules for the purpose of carrying out the scheme of drawbacks. Section 75A speaks about interest. It states that when any drawback payable to a claimant under Section 74 or 75 is not paid within a period of one month from the date of filing a claim for payment of such drawback, the claimant will be eligible for interest at the rate fixed under Section 27A of the Customs Act, 1962.
30. The Drawback Rules, 1995, as amended from time to time governs the procedure for claiming of drawback. Being an export promotion incentive, the procedure for claiming is also simple and hassle-free. The exporter is required to file a drawback shipping bill in the format as required under Rule 13 along with necessary declaration. The goods are examined by officers and a report made thereof. Copy of the drawback shipping bills which contains details of examination report is the claim copy for the drawback. The claim is then settled and passed by the officers of the customs department.
31. We are fully conscious that the issue in this appeal is not for claim of drawback but only request for amendment of shipping bills. In fact, as per sub-clause (a) of the first proviso to 16 Customs Appeal No.70065 of 2022 Section 129A(1) of the Customs Act, 1962, the Tribunal has no jurisdiction to entertain an appeal if the order relates to payment of drawback under Chapter X. The fleeting glance in the above paras on the nature and scheme of duty drawback is only to equip ourselves while considering the huge delay on the part of the appellant in filing application for conversion of the free shipping bill to drawback shipping bill. Needless to say, that the consequence of such conversion is nothing but to put forward a claim for duty drawback.
32. At the cost of repetition, it is stated that in the first application for amendment dated 9-10-2015 the period involved is from 2012 to 2014. In the second application dated 25-1- 2016, the appellant has included the period from 2000 to 2011 also.
33. Though Section 149 of Customs Act, 1962 and Drawback Rules, 1995 do not specify any time limit, the huge and humongous delay does concern us. Under Section 75A there is liability to pay interest on delayed payment of drawback. Conversely, it has to be construed that a claim of drawback has to be filed within reasonable time. The Limitation Act, 1963 bars unduly long time for pursuit of a legal remedy. Neither do Courts encourage enforcing stale demands.
34. Section 27 of the Customs Act, 1962 deals with claim for refund of duty. The refund claim under this section has to be filed within one year from the date of payment of duty. Section 28 deals with recovery of duty which is not paid or short-paid. While raising a demand for recovery of such duty the period is limited to two years. Prior to 14-5-2016, this period was one year. In case of fraud, collusion or suppression of facts, the said period for which the duty can be demanded and recovered is extended to five years. When the time limit is specifically prescribed, the same would apply and one need not take recourse to the Limitation Act.
35. In the absence of any period of limitation prescribed, it is generally understood that every authority has to exercise the powers within a reasonable period. Conversely, any right that 17 Customs Appeal No.70065 of 2022 has to be enforced is to be sought without unreasonable delay. If the right is not enforced within reasonable time the remedy would stand extinguished. No hard and fast rule can be laid down to determine what is reasonable time. It depends upon the facts and circumstances of each case.
36. In the case of Collector of Customs v. TVS Whirlpool - 1996 (86) E.L.T. 144 (Tri.) the question that came up for consideration was that what would be the limitation period for raising a demand of interest when there is no time limit prescribed for demand/recovery of interest under Sec. 47 read with Sec. 61(3) of the Customs Act, 1962 as it then stood during the relevant time. No period of limitation was prescribed in these provisions for recovery of interest. The facts are such that, though the assessee had paid duty with interest the department was of the view that assessee was liable to pay further amount as interest for which notice of demand was issued. The Tribunal followed the judgment of Hon‟ble Apex Court in Govt. of India v. Citedal Fine Pharmaceuticals - 1989 (42) E.L.T. 515 (S.C.) which has been already captioned in the above decision. The relevant portion of the order is reproduced as under :-
"4. We have considered the submissions made by both sides. We observe that no period of limitation has been prescribed under Section 61(3). A reasonable period of limitation will have to be read under this section as held by the Hon‟ble Supreme Court in the case of Government of India v. Citedal Fine Pharmaceuticals - 1989 (42) E.L.T. 515 (S.C.). This Tribunal in number of cases where the demands were raised under Rule 57- I at a time when no period was prescribed for recovery of Modvat credit has held that the reasonable period of limitation would in that case would be six months or five years depending upon whether there was any suppression of facts involved or not. We observe that the scheme of the Customs Act is similar to the scheme of Central Excises and Salt Act and in that view of the matter we hold that similar view has to be taken in the case of recovery to be made under the Customs Act where no period of limitation has been prescribed. In this premise we therefore 18 Customs Appeal No.70065 of 2022 hold that the lower authority‟s order is prima facie maintainable in law and the prayer of the department for stay of the operations of the order of the Ld. Lower Authority has to be dismissed. Inasmuch as it is a covered matter by our decisions referred to supra the appeals themselves are also taken up for disposal with the consent of the both sides. The only plea of the Revenue is that in the absence of any period of limitation provided under Section 61(3), the general period, of limitation prescribed under the Limitation Act should be made applicable. We are unable to accept this plea of the Ld. D.R. in view of the judgment of the Hon‟ble Supreme Court in the case of G.O.I. v. Citedal Fine Pharmaceuticals (supra). The Hon‟ble Supreme Court in para 6 has held is reproduced below :
"Ld. Counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article 14 of the Constitution, as it does not provide for any period of limitation for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 12, the officer may act arbitrarily in recovering the amount after lapse of long period of time. We find no substance in the submission. While it is true that Rule 12, does not prescribe any period within which recovery of any duty as contemplated by the Rule is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case."19
Customs Appeal No.70065 of 2022
5. This Tribunal in the context of the demands raised under Rule 57-I of the Central Excises and Salt Act, 1944 when no period of limitation was prescribed under the said rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 1962. Here also we observe under Section 28 of Customs Act, 1962 period of limitation prescribed for recovery of duty is six months or five years as above and also the period for claim of refund is also six months. The position being similar we hold that the same logic should apply in respect of the recovery to be made under the Customs Act where no period of limitation has been prescribed. We therefore hold that the Ld. Lower Authority is right in holding that the demand for interest beyond the period of six months from clearance of goods is barred by limitation and we therefore uphold the order of the lower authority and dismiss the appeals. We observe that the relevant date for demand of duty would be date on which goods were allowed clearance from the Warehouse as the interest is required to be paid till the date of clearance in terms of Rule 61(3) of the Customs Act, 1962. The department recovered at the time of clearance the duty as well as interest as held payable at that time and cancelled the bonds. Taking into consideration the relevant date the demand have been clearly raised much after the period of six months. The Appeals of the Revenue are therefore dismissed."
37. The Tribunal refused to accept the plea of Revenue that the limitation period of three years for recovery of money as per Limitation Act, 1963 should apply. The said decision of the Tribunal was upheld by the Hon‟ble Supreme Court as reported in 2000 (119) E.L.T. A177 (S.C.). The principle enunciated in these judgments is that when no limitation period is prescribed 20 Customs Appeal No.70065 of 2022 under the Act, the proceedings for recovery have to be initiated within a reasonable time.
38. Again, Section 128 of the Customs Act, 1962 provides for filing of appeals before Commissioner (Appeals). This section bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days. The question as to whether delay beyond six months can be condoned by resorting to Section 5 of the Limitation Act, 1963 was discussed by the Hon‟ble High Court of Delhi in Delta Impex v. Commissioner of Customs - 2004 (173) E.L.T. 449 (Del.). The relevant portion is as under :-
"12. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act.
13. The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the Legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further.21
Customs Appeal No.70065 of 2022
14. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of 30 days, can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded.
15. The expression "expressly excluded" in sub-section (2) of Section 29 of the Limitation Act means an exclusion by express words, i.e. by express reference and not exclusion as a result of logical process of reasoning. In the instant case, there is no question of implied exclusion but, it specifically provides a different period of limitation, as also the period during which, if delay has occurred, it could be condoned."
39. The Hon‟ble High Court held that when the Act provides for different period of limitation, the applicability of Section 5 of the Limitation Act is specifically excluded.
40. Reverting to the case on hand, although no limitation has been prescribed in Section 149, an assessee cannot be permitted to take undue advantage. The remedy of amendment under Section 149 should be sought within a reasonable time. We have already expressed our view that there is inordinate delay in filing the application for amendment under Section 149 of the Customs Act, 1962. We then have to consider what would be the reasonable period for entertaining an application under Section 149 of the Customs.
41. The Customs Act, 1962 being a special law and a complete code in itself it would not be proper to pull in the limitation period under the Limitation Act, 1963 and make it applicable to Section 149. More so, because Section 149 does not deal with any recovery of duty or refund of duty. It is a section merely to permit amendment in documents. Amendment is purely a procedural requirement. The legislature in its wisdom has not prescribed either in the Act or Rules a time limit to fulfil this 22 Customs Appeal No.70065 of 2022 procedural requirement. The consequence of such amendment as already stated, is to claim refund of duty suffered on inputs in the nature of drawback. The Limitation Act limits the period for filing a suit for recovery of money to three years. As per Article 137 of the Schedule to The Limitation Act, 1963 any application for which no period of limitation is provided elsewhere is three years from the time when the right to apply accrues. We are unable to refrain ourselves from being not persuaded by these provisions in the Limitation Act to hold that a period of three years would be a reasonable time for filing an application under Section 149.
42. The application dated 9-10-2015 contains request for amendment of Shipping Bills for the years 2012 to 2014. It gives details of shipping bills for three years (Jan., 2012 to Dec., 2014). The second application dated 25-1-2016 made by the appellant is only an afterthought by which appellant has included Shipping Bills from the year 2000 to 2011. We hold that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper." 4.5 Similarly in case of Carboline India Pvt. Ltd [2022 (381) E.L.T. 397 (Tri. - Chennai)] relying on the above decision, tribunal has held as follows:
"10. The issue is with regard to the rejection of the request for conversion of free shipping bills to advance authorization scheme shipping bills. Section 149 of the Customs Act, 1962 which deals with conversion/amendment of the shipping bills is as under :-
Section 149. .....
11. The said provision does not stipulate any time limit for permitting the amendment of shipping bills. The department has relied upon the Board Circular No. 36/2010 (supra). The said circular reads as under :-
"Sub. : Conversion of free shipping bills to export promotion scheme shipping bills and conversion of shipping bills from one scheme to another - reg.23
Customs Appeal No.70065 of 2022 I am directed to invite attention to the Board‟s circular No. 4/2004-Cus., dated 16-1-2004 which debars conversion of free shipping bills to Advance License/DFRC/DEPB shipping bills and allows conversion of shipping bills from one export promotion scheme to another only where the benefit of an export promotion scheme claimed by the exporter has been denied by the DGFT/MoC&I or Customs due to any dispute.
2. It has been represented to the Board that the norms for allowing conversion of shipping bills may be relaxed and the Commissioners should be allowed to consider requests for conversion of shipping bills from free to export promotion scheme and from one export promotion scheme to another on a case to case basis depending on the merits of the case. It has also come to notice of the Board that the Tribunals in a series of judgments have held that amendment to shipping bill after export of goods is governed by the proviso to section 149 of the Customs Act, 1962 and if the requirements of the said proviso are satisfied, conversion of shipping bill should be allowed. The conversion of the shipping bill from one scheme to another cannot be linked with denial of benefit of one scheme by DGFT/MoC&I or Customs due to some dispute as no such condition for amendment of shipping bill has been provided in section 149 of Customs Act, 1962.
3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination (for example, from Advance Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB scheme or vice versa) irrespective of whether the benefit of an export promotion scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not. The conversion may be permitted in accordance with the provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on 24 Customs Appeal No.70065 of 2022 the basis of documentary evidence which was in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by the DGFT/MOC. The conversion may be allowed subject to the following further conditions :
(a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO).
(b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product.
(c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be.
(d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion.
(e) The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/misdeclaration/manipulation has been noticed or investigation initiated against him in respect of such exports.
4. Free shipping bills (shipping bills not filed under any export promotion scheme) are subject to „nil‟ examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1)(a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995.
5. Due care may be taken while allowing conversion to ensure that the exporter does not take benefit of both the schemes i.e. the scheme to which conversion is sought and the scheme from 25 Customs Appeal No.70065 of 2022 which conversion is sought. Whenever conversion of a shipping bill is allowed, the same should be informed to DGFT so that they may also ensure that the exporter does not take benefit of both the schemes.
6. This circular supersedes the Board circular No. 4/2004-Cus., dated 16-1-2004 and the earlier circulars issued in the past on this issue. This circular shall be applicable only to shipping bills filed on or after the date of issuance of this circular. Till such time as EDI system is modified to allow conversion of shipping bill in the EDI system, conversion may be allowed manually.
7. A suitable Public Notice for information of the Trade and Standing Order for guidance of the staff may be issued. Difficulties faced, if any in implementation of the directions may be brought to the notice of the Board."
12. When the statute does not prescribe any time limit for filing an application for conversion of a shipping bill, the department cannot rely upon a circular to frustrate the provisions contained in the statute. When there is a conflict, the statute will definitely prevail over the Board circular. The issue whether the time limit prescribed as per the Board circular will apply was considered by this Tribunal in the case of Autotech Industries (India) Pvt. Ltd. reported in 2021 (11) TMI 518-CESTAT Chennai = 2022 (380) E.L.T. 364 (Tri. - Chennai) and held that time limit of three months prescribed in the above Board circular cannot be applied to reject the request of conversion/amendment of shipping bills. The Tribunal in the case of Contemporary Leather Pvt. Ltd. v. CC, Chennai reported in 2021 (12) TMI 393-CESTAT Chennai followed the decision of the Hon‟ble jurisdictional High Court to hold that the Board circular cannot be pressed into application to deny the request for conversion of shipping bills.
13. The Hon‟ble High Court of Kerala in the case of Parayil Food Products Pvt. Ltd. v. Union of India reported in 2020 (10) TMI 1141 - Kerala High Court had considered the very same issue and held that when Section 149 does not prescribe any time limit, the request for conversion cannot be denied by application 26 Customs Appeal No.70065 of 2022 of the Board circular. The relevant para is reproduced as under
:-
"8. For the purpose of issuance of No Objection, provisions of Section 149 of the Customs Act, 1962 envisage the complete procedure for issuance of no objection certificate, i.e. for the purpose of amendment of a bill of entry or a shipping bill only after fulfilling certain conditions in the proviso. The same read thus :
149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended :
Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.
9. On the other hand, the respondent rejected the application of the petitioner by relying upon condition No. 3a of the W.P. (C) No. 21418 of 2020(B) 6 Circular which reads thus : "The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO)"
10. It is trite law that circulars cannot assume the role of the Principal Act lest the provisions only a binding force. If at all the revenue is facing difficulties in accepting and processing applications for amendment of bills of lading, an amendment to the Principal Act can be suggested in accordance with law and till the pendency of the same, an Ordinance can also be issued. No such stand is taken as evident from Ext.P10. I am afraid the action of the respondent cannot be accepted, for, it is an utter violation of statutory provision of Section 149 of the Customs Act. For the reasons assigned, the impugned order Ext.P10, dated 7-7-2020 is hereby quashed. The writ petition is allowed. Respondents are directed to issue no objection certification 27 Customs Appeal No.70065 of 2022 seeking amendment of the bill in accordance with law. Let this exercise be done within a period of one month from the date of receipt of a copy of this judgment."
14. The second ground for rejecting the request for conversion of free shipping bills is that the goods exported have not been subjected to physical examination. As can be seen from Section 149, which has been noticed above, there is no requirement in the said section that the amendment can be allowed only if the goods have been subjected to physical examination before export. On perusal of the impugned shipping bills, it is seen that the appellants have clearly stated in the shipping bills that the goods are exported under advance authorization scheme. On one shipping bill, there is a mistake in noting the license number of the advance authorization. In both the shipping bills, the scheme code was wrongly mentioned though they have stated that the goods are exported under advance authorization. The code has been noted as "00" instead of "01".
15. Section 149 is a provision which permits the importer/exporter to request for amendment of documents for the mistakes that may have happened while filing the documents. When an application for amendment is received, if it is very much clear from the documents that the mistake was only an inadvertent mistake and there is no attempt of fraud or mis-statement to evade duty, the request for conversion ought to be allowed.
16. The Tribunal in the case of Autotech Industries (India) Pvt. Ltd. (supra) had observed that the amendment is only a procedural issue. In the present case, the documents itself establish that these were inadvertent mistakes.
17. The Hon‟ble High Court of Madras in the case of CC v. Diamond Engineering (Chennai) Pvt. Ltd. - 2019 (5) TMI 492- Madras High Court had occasion to consider similar issue wherein substantial questions of law were taken up for consideration which are as under :-
"(i) Whether the 2nd respondent tribunal was right in holding that the 1st respondent is entitled to the benefit of the Circular 28 Customs Appeal No.70065 of 2022 No. 36/2010, dated 23-9-2010 and that the period of limitation of 3 months under the said circular is not applicable to the 1st respondent as Section 149 does not impose any period of limitation?
(ii) Whether the 2nd respondent tribunal was right in holding that, though the 1st respondent filed the shipping bills prior to the implementation of the Circular No. 36/2010, dated 23-9-
2010, the aid http://www.judis.nic.in 3 circular is applicable to the 1st respondent despite the fact that the circular specifically enunciates that the circular shall be applicable only to shipping bills filed on or after the date of issuance of the circular?
(iii) Whether the Tribunal was right in holding that the Circular No. 36/2010, dated 23-9-2010 is applicable to the 1st respondent, when Circular 4/2004, dated 16-1-2004 was in force at the relevant point of time when the 1st respondent filed the shipping bills?
(iv) Whether the Tribunal was right in remitting the case back to the adjudicating authority for verifying if the documents filed were in existence at the time of the export, despite the specific finding given by the adjudicating authority that no documentary evidence which was in existence at the time of the export has been produced before him?
(v) Whether the Tribunal was right in remitting the case back to the adjudicating authority for verifying if the documents filed were in existence at the time of the export when no fresh documents, which escaped the consideration by the adjudicating authority were produced before it for consideration?
(vi) Whether the circulars issued by the Central Board of Excise and Customs under Section 151A of the Customs Act, 1962 can be read along with the various provisions under the Customs Act, 1962 during its implementation?"
The appeal filed by the department was dismissed upholding the decision taken by the Tribunal allowing conversion of the shipping bills.
18. After appreciating the facts, evidence and also following the judgments cited above, I am of the view that the rejection of 29 Customs Appeal No.70065 of 2022 request for conversion of free shipping bills to advance authorization scheme shipping bills are not justified..." 4.6 Thus we are not inclined to agree with the impugned order which has been made without even hearing the appellant or without affording any opportunity of hearing to the appellant. Appellant should have been granted opportunity to establish that claim in terms of proviso to Section 149. The impugned order rejecting the request made is hit by the violation of principles of natural justice. Without going into further merits of the issue we would set aside this impugned order for this reason only and remand the matter back to Commissioner for re-consideration of this request made under Section 149 after affording proper opportunity to the appellant for presenting their case. Appellant has in their submissions before us placed reliance on the following decisions:
➢ Share Medical Care [2007 (209) ELT 321 (SC)] ➢ Diamond Engineering Chennai P Ltd. [2013 (288) ELT 265 (T-Chennai)] ➢ VRA Cotton Mill Pvt Ltd [2014 (309) ELT 100 (T-Ahmd)] ➢ Leotex {2012 (281) ELT 173 (Ker)] ➢ rajguru Impex (India) Ltd. [2013 (298) ELT 213 (T-Ahmd) ➢ Parle Products Pvt Ltd. [2017 (358) ELT 341 (T-Mum)] ➢ Circular No 16/2023-Cus (Based on Cosmo Film Judgement) As we are not considering the matter on the merits but are inclined to decide the same for violation of principles of natural justice, we are not inclined to make our observation on these decisions. Commissioner should take note of these while deciding the case in de novo proceedings.
5.1 Appeal is allowed. Matter is remanded back to the Original Authority for re-consideration de-novo. Needless to say that as the issue is in respect of conversion of free shipping bill into drawback shipping for the period from 01.07.2017 to 30 Customs Appeal No.70065 of 2022 01.08.2018, Commissioner in de-novo proceeding will decide the matter within three months from the date of receipt of a copy of this order. Counsel undertakes that the appellant will not seek any adjournment before the Commissioner and provide all the assistance for speedy disposal.
(Dictated and pronounced in open court) Sd/-
(P.K. CHOUDHARY) MEMBER (JUDICIAL) Sd/-
(SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp