Custom, Excise & Service Tax Tribunal
M/S. Sree Ayyanar Spinning Mills & vs Cce, Tuticorin on 21 January, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/40722/2013
(Arising out of Order-in-Original No. 1/2013 dated 07.01.2013, passed by the Commissioner of Customs, Tuticorin).
For approval and signature
Honble Shri R. PERIASAMI, Technical Member
M/s. Sree Ayyanar Spinning Mills & : Appellant
Weaving Mills Ltd
Vs.
CCE, Tuticorin : Respondent
Appearance Shri T. Ramesh, Adv., for the appellant Ms. Indira Sisupal, AC (AR), for the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Date of Hearing/Decision: 20.01.2015 FINAL ORDER No. 40402 / 2015 Appellant filed this appeal against the Commissioners Order dated 07.01.2013.
2. The brief facts of the case are that the appellants are regular exporter of cotton yarn manufactured by them against the export obligation of DEPB Scheme, EPCG Scheme and Advance License Scheme. During the period November, 2010 to April, 2011, the appellants have exported cotton yarn of various counts under various shipping bills and towards fulfillment of obligations of EPCG scheme and Advance License Numbers have to be mentioned in those shipping bills. Whereas, they have inadvertently failed to mention the Advance License Numbers in seven shipping bills. Similarly in two other shipping bills dated 25.11.10 and 26.22.10, under which the appellants have exported cotton yarn, DGFT has denied the benefit under DEPB scheme and appellants sought to claim alternative export benefit under advance license scheme. Hence they sought for amendment in the shipping bills under Advance License Scheme under Section 149 of the Customs Act. The Commissioner of Customs denied their request for amendment. Hence, the present Appeal.
2. Ld. Advocate for the appellant submits that out of 140 shipping bills submitted to the licensing authority for fulfillment of export obligation, the licensing authority returned only seven shipping bills on the ground that the shipping bills do not indicate Advance License Numbers. He further submits that all the goods were exported by following ARE-1 procedure, which was duly examined by the jurisdictional Superintendent of Customs and also signed. They have declared ARE-1 that the export of goods were in discharge of export obligation under quantity based advance license. The customs officer who allowed the let export has clearly endorsed the shipping bill number in ARE-1. Therefore, these facts are already available before the let export allowed. He relied on the decision of the Tribunal in the case of Diamond Engg. (Chennai) Pvt. Ltd. Vs. CC (Seaport-Export), Chennai 2013 (288) ELT 265 (Tri.- Chennai) and Final Order No. 40864/2014 dated 10.09.2014 of the Tribunal in the case of Larsen & Toubro Ltd. Vs. CC (Exports), Chennai.
3. On the other hand, the Ld. AR reiterated the findings of the Commissioner and submits that the authority has rightly rejected the appellants claim for amendment after the export has taken place. The Boards Circular dated 16.01.04 is not applicable to the present case. He relied on the decision of the Honble High Court of Madras in the case of CC, Chennai Vs. Suzlon Energy Ltd. 2013 (293) ELT 3 (Mad.) and the decision of the Honble High of Delhi in the case of Terra Films Pvt. Ltd. Vs. CC -2011 (268) ELT. 443 (Del.)
4. Heard both sides. The short issue involved in this case relates to conversion of shipping bills from DEPB Scheme to Advance License Scheme. The appellants sought for amendment of shipping bills to include the advance license number 3510023632 dated 30.05.2008. The appellants plead if this amendment is not allowed there shall be shortfall in the export obligation against the said advance license. I have perused the copy of the shipping bill No.1885421 dated 30.11.2010. The description given in the shipping bill is 100% cotton open end yarn grey for weaving. The said goods were cleared from the factory of manufacture through ARE-1. On perusal of ARE-1 No. 23 dated 30.11.2010 at S.No. 3,4 and 5 wherein they have given their declaration. Sl.No.4 of the declaration is clearly reads as under:- we hereby declare that the export is in discharge of the export obligation under a Quantity base Advance License. Part B of ARE-1 which was duly certified by the customs officer at the time of allowing export (let export), in which he has mentioned the shipping bill No. 1885421 dated 30.11.2010. All the remaining ARE-1 and the corresponding shipping bills were also clearly shows that the shipping bill and the corresponding ARE1 were duly signed by the customs officer. Both the ARE-1s were duly verified by the Superintendent in charge of the factory which was again verified by the customs officer at the Fort. Therefore, it is clearly confirmed that the said goods mentioned under these shipping bills were exported under Advance License Scheme and these documents were in existence before export of the goods. In terms of Section 149 of the Customs Act read with Circular No. 4/2004 dated 16.10.04, which clearly envisages amendment to be considered between one scheme to another scheme where the documentary evidence which was in existence before the export. In the present case as discussed above, ARE-1 clearly shows that the goods were exported under Advance License Scheme, which is counter signed by the proper officer of Customs, who allowed the let export and mentioned the shipping bill number in Part B of ARE1. On identical issue this Tribunal in Final Order No. 40864/2014 dated 10.09.2014 already allowed the amendment of the shipping bills. In view of the above, I fully agree with the appellants contention and hold that the appellants are eligible for conversion of all the nine shipping bills from DEPB scheme to Advance License Scheme. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief.
(Operative part of the Order pronounced in the Open Court on 20.01.15) (R. PERIASAMI) TECHNICAL MEMBER BB 1