Custom, Excise & Service Tax Tribunal
Commissioner Of Customs Airport & Acc, ... vs Intel Technology India Pvt. Ltd. on 10 December, 2024
C/20373/2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 20373 of 2022
(Arising out of Order-in-Original No. 1326/2022 dated 17.02.2022
passed by the Commissioner of Customs, Bangalore.)
The Commissioner of Customs
Port & ACC Commissionerate, Appellant(s)
Devanahalli,
Bengaluru.
VERSUS
M/s. Intel Technology India Pvt.
Ltd.
Survey No.23-56P, Devarabeesanahalli,
Respondent(s)
Varthur Hobli, Bangalore South Taluk, Bengaluru - 560 103.
APPEARANCE:
Shri K. A. Jathin, Deputy Commissioner (AR) for the Appellant. Shri kartikey Kulshrestha, Advocate for the Respondent.
CORAM: HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) FINAL ORDER NO. 21239 /2024 DATE OF HEARING: 10.12.2024 DATE OF DECISION: 10.12.2024 PER: R. BHAGYA DEVI This appeal is filed by the Revenue against Order-in- Original No.1326/2022 dated 17.2.2022 passed by the Principal Commissioner of Customs, Bangalore.Page 1 of 5
C/20373/2022
2. The respondent, M/s. Intel Technology India Pvt. Ltd., had filed 11 Shipping Bills from 14.05.2020 to 03.07.2021 mentioning that filed for 'No Foreign Exchange Involved' (NFEI) instead of Commercial Transaction Mode or against remittance. At a later date on 10.08.2021 and 14.12.2021 to comply with the RBI compliance and to complete the EDPMS process, they requested for amending these 11 Shipping Bills to Scheme Code
21. The Principal Commissioner in the impugned order taking into consideration the provisions of Section 149 of the Customs Act, 1962 and the CBIC Circular No.36/2010 dated 23.09.2010 allowed conversion of these shipping bills from NFEI 99 to EOU / EPZ / SEZ / EHTP / STP (21) on the ground that they do not claim any export incentive schemes. On review, the Department is in appeal only on the ground that the request for conversion by the respondent was made after a period of three months as against the CBIC Circular No.36/2010 dated 23.09.2010 which specifically under Clause 3(a) mentions that 'The request for conversion is made by the exporter within three months from the date of Let Export Order (LEO)'. It is also submitted that the authorities are bound by the said Circular and hence, the impugned order is to be set aside. Hence, the present appeal.
3. The learned Authorised Representative (AR) for the Revenue submitted that the CBIC Circular dated 23.09.2010 relied upon by the Principal Commissioner clearly specifies the time line of three months and hence, the request for conversion filed beyond three months cannot be accepted.
4. The learned counsel for the respondent submitted that the conversion was accepted by the Principal Commissioner from 'No Foreign Exchange Involved' (NFEI) to EOU/other schemes since it was a fact that they had inadvertently mentioned NFEI and Section 149 of Customs Act, 1962 allowed such amendments. It Page 2 of 5 C/20373/2022 is also submitted that only in 8 cases, it was beyond three months and for other cases, the matter is already settled in favour of the respondent in view of the following decisions:
• Saurabh Overseas Traders vs. Commissioner of Custom: (2024) 16 Centax 434 (CESTAT-BANG.) • Chamundi Textiles (Silk Mills) Ltd. vs. CC, Bangalore:
2021 (8) TMI 991 (CESTAT-BANG.) • Carl Zeiss India (Bangalore) Pvt. Ltd. Vs. CC: 2024 (2) TMI 1098 (CESTAT-BANG.) • Man Industries (India) Ltd. Vs. CC, Mumbai: 2006 (202) ELT 433 (CESTAT-MUM.) affirmed by the Hon'ble Bombay High Court reported at 2007 (216) ELT 15 (Bom.) and further affirmed by Hon'ble Supreme Court in 2015 (326) ELT A34 (SC)
5. Heard both sides. The limited issue to be decided in this appeal is whether the Principal Commissioner had rightly allowed conversion of 11 Shipping Bills from NEFI to EOU and other schemes. It is an admitted fact that this conversion has no revenue implication since the conversion was allowed only on the ground that the respondent does not claim any export incentive schemes. The only ground taken by the Revenue is that the request for conversion was filed beyond three months and this issue is no more res integra as it is covered by various decisions of the Tribunal and the Hon'ble High Court where such conversions were allowed even in cases where the request was filed beyond three months since the Section 149 of the Customs Act, 1962 does not specify any time limit.
6. In the case of Principal Commissioner of Customs, Mundra vs. Lykis Ltd.: 2021 (2) TMI 261, the Hon'ble Gujarat High Court observed as follows:
"5. In appeal by the respondents before the Tribunal, the Tribunal took notice of Section 149 of the Customs Act, 1962. The Tribunal noticed that Page 3 of 5 C/20373/2022 no time limit has been prescribed under the statutory provision of Section 149 of the Act. In such circumstances, the Circular cannot prescribe particular time period, which is otherwise not provided in a statute. The Tribunal while allowing the appeal of the respondents herein observed as under :-
"4. We have heard both the sides and perused the records. We find that the appellant has sought for the conversion of Drawback shipping bills to DFIA shipping bills, in terms of Section 149 of Customs Act, 1962 which reads as under :-
"149. Amendment of documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorize 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 authorized 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 of the goods were cleared, deposited or exported, as the case may be."
4.1 From the above Section, it is clear that no time limit is prescribed. We find that the request of the appellant for conversion was rejected on the sole ground of limitation as prescribed under Board Circular No. 36/2010-Cus. We find that since the time limit has not been prescribed under the Act, the same cannot be fixed by way of the circular. Therefore, if at all there is a time limit by way of circular, it is only procedural requirement. Therefore, on this ground of limitation, application could not have been rejected, particularly when circular prescribing time limit is without authority of any statutory provision, Act and rules supported.
4.2 It is settled law that the time limit prescribed by the Board Circular is not binding as same is not statutory provision in terms of section 49 of the Customs Act, 1962. We further find that in the identical case of Bectors Food Specialities Ltd. (Supra) this Tribunal, Chandigarh after considering the Hon'ble Gujarat High Court judgment in the case of Anil Sharma v. Union of India - 2017 (350) E.L.T. 322 (Guj.) held that the Page 4 of 5 C/20373/2022 assessee was entitled for conversion of shipping bill from DBK Scheme to DFIA Scheme. We after going through the said decision find that the circumstances and reason for delay in filing request for conversion was almost identical in the present case. In the case cited of co-ordinate Bench of this Tribunal Mumbai dealing with the identical issue in the case of Parley Product Pvt. Ltd. (supra) on the fact that the conversion of drawback shipping bill to DFIA shipping bill was after 2 years, wherein it was held that no time limit provided under section 149 of Customs Act, 1962.
5. As per our above discussion, we are of the view that the appellant is legally entitled for conversion of Drawback Shipping Bills to DFIA Shipping Bills in respect of 184 Shipping Bills as per the list provided in appeal along with the appeal memo. The respondent Commissioner is directed to issue necessary certificate enabling appellant to get the DFIA licenses revalidated."
7. In view of the above, the impugned order is upheld and the appeal filed by the Revenue is dismissed.
(Operative portion of the order was pronounced in open court on conclusion of the hearing.) (D.M. MISRA) MEMBER (JUDICIAL) (R. BHAGYA DEVI) MEMBER (TECHNICAL) rv Page 5 of 5