Custom, Excise & Service Tax Tribunal
M/S Terra Films Pvt. Ltd vs C.C., New Delhi on 11 November, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision:11.11.2009 Customs Appeal No.582 of 2008-SM Arising out of order in original No.33/2008 dated 6th May, 2008 passed by the Commissioner , Customs, ICD, Tughlakabad, New Delhi. For Approval and Signature: Honble Shri M. Veeraiyan, Member (Technical) 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s Terra Films Pvt. Ltd. Appellant Vs. C.C., New Delhi . Respondent
Appearance:
Shri Sandeep Jha, Advoate for the appellant Shri S.N. Srivasata, Authorized Departmental Representative (SDR) for the Revenue Coram: Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.____________________ Per M. Veeraiyan:
This is an appeal against the order of the Commissioner No. 33/2008 dated 6th May, 2008 which was itself passed in de novo proceedings in pursuance of CESTAT Final Order No.1775/07-SM(BR) dated 1.11.2007.
2. Heard both sides.
3. The relevant facts, in brief, are that the appellant is a manufacturer of Co-extruded Multilayer Film having their factory in specified area of Himachal Pradesh and availing exemption from excise duty. They have exported the commodity under 7 shipping bills as per the details given below:
Shipping Bill No.& Date Description of Goods FOB Under which scheme export was made 1417496 & 13.9.2004 Co-extruded multilayer film 472718 EPCG Cum DEPB 1422708 & 7.10.2004 Co-extruded multilayer film 687483 EPCG Cum DEPB 1448484 & 27.1.2005 Co-extruded multilayer film 128767 EPCG Cum DEPB 1480913 & 04.4.2005 Co-extruded multilayer film 2196227 EPCG Cum DEPB 1423756 & 13.10.2004 Co-extruded multilayer film 1770358 EPCG Cum DEEC 1428619 & 27.10.2004 Co-extruded multilayer film 2014916 EPCG Cum DEEC 1446703 & 24.12.2004 Co-extruded multilayer film 2147606 EPCG Cum DEEC After lapse of considerable time after export, they vide letters dated 27.1.2006 requested for amendment of their shipping bills for inclusion of the benefit under the drawback scheme. This request was rejected by the Commissioner. On appeal , the Tribunal vide order dated 1.11.2007 directed the Commissioner to consider the request for amendment of the shipping bills under Section 149 of the Customs Act, 1962 in accordance with law. The Commissioner by the impugned order rejected the request of the exporter for amendment of the abovementioned 7 DEPB/DEEC shipping bills into those cum drawback scheme.
4. Learned Advocate submits that they were new to export and they have by mistake failed to claim the benefit of that drawback at the time of export. Commissioner ought to have allowed amendment in terms of Section 149 of the Customs Act, 1962, inasmuch as the export of the products is not in dispute. If the permission is granted by amending the shipping bills for including the benefit under drawback, the fixation of brand rate will be based on documents like purchase invoices, records relating to manufacturing and that no prejudice would be caused to the department. He submits that as exporter they should not be allowed to suffer for failure to claim the benefit inadvertently at the time of export. He also relies on the decisions of the Tribunal by which conversion of such shipping bills were permitted particularly the decision in the case of Man Industries (India) Ltd. vs. C.C. (EP) vide order No.A/335/2006-WZB/C-II(CSTB) in Appeal No.C/4/2006 dated 17.3.2006 reported in MANU/CM/0215/2006.
6. Learned SDR opposes the prayer of the appellant. He submits that the claim for drawback especially the brand rate requires detailed verification of the nature of inputs and the quantum of inputs and the actual quantity required for the export product including the duty payment on such quantity to determine the drawback rate. This requires verifying the statements referred to as DBK-I, II & III. Further, the goods which are exported under brand rate require to be verified at the time of export for correctness of the particulars as per drawback statements. As the goods have already been exported and that none of the consignments have been subject to examination by the Customs, as recorded in the shipping Bills, the acceptance of the prayer will be detrimental to the interest of Revenue.
7. I have carefully considered the submissions from both sides. The appellants claim right of amendment under Section 149 of the Customs Act, 1962 which reads as under:
Section 149. Amendment of documents. Save as otherwise provided in section 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 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 a the time the goods were cleared, deposited or exported, as the case may be.
It is to be observed that importer/exporter cannot claim amendment as a matter of right. The words used namely, proper officer may, in his discretion, authorise any document to be amended indicate that the power to be exercised is only discretionary power. Commissioner has refused to exercise the discretion in favour of the appellant, he has relied on the guidelines prescribed by the Board vide Circular No.4/2004 dated 16.1.2004 issued vide F.No.609/176/02/DBK. He has held that the appellant does not come under the guidelines issued by the Board. In fact, he has held that it amounts to conversion of shipping bills and not merely of amendment. One reason for not acceding to the request was that the goods have already been exported. The apprehension of the learned SDR that in respect of the goods already exported during the years 2004 & 2005, to cause verification to fix brand rate under the drawback rules is physically impossible deserves to be taken into account. In view of the above, the order of the Commissioner in not acceding to the request for amendment of shipping bills in terms of Section 149 cannot be held to be arbitrary. No case has been made out for exercise of discretion by the Tribunal in the light of the fact that as revealed from the records, none of the consignments have been subject to Customs examination at the time of export.
8. Therefore, I hold that there is no merit in the appeal and accordingly, the same is rejected.
(M. Veeraiyan) Member (Technical) scd/ 4