Custom, Excise & Service Tax Tribunal
Metallic Bellows (I) Pvt Ltd vs The Commissioner Of Customs (Exports) on 28 March, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/949/07 (Arising out of Order-in-Original No.27/07/08 dated 29/08/2007 passed by Commissioner of Customs (Exports), Nhava Sheva) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) ====================================================
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 Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental : authorities?
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Metallic Bellows (I) Pvt Ltd., Appellants
Vs.
The Commissioner of Customs (Exports),
Nhava Sheva Respondents
Appearance:
Shri.T.C.Nair, Advocate for Appellants
Shri.S.N.Prasad, SDR for Respondents
CORAM:
Mr. M.V. Ravindran, Member (Judicial)
Date of Hearing : 28/03/2008
Date of decision : 28/03/2008
O R D E R No:..
Per: Shri M.V.Ravindran, Member (Judicial)
1. This appeal is directed against the order-in-original No.27/07/08 dated 29/08/2007.
2. The appellant herein exported 25 Nos. of Metallic Expansion Bellows covered under invoice No.EXP-01 and ARE-1 both dated 19/04/2007 under free Shipping Bill No.2730895 dated 23/04/2004. The appellant had imported raw material under Advance Licence, noticing the error, that they have not recorded this export under the advance licence, they filed an application for conversion of free shipping bill to advance licence shipping bill. The said application was rejected by the adjudicating authority relying upon the Boards Circular No.4/2004 dated 16/01/2004.
3. Heard both sides and perused the records.
4. The issue involved in this case is that the boards circular was in dispute before the Tribunal in the case of Nucleus Satellite Communications Pvt Ltd., Vs. CC (Seaport) Chennai as reported at 2007 (216) ELT 67 (Tri.-Chennai). It is the submission that the Tribunal held in favour of the assessee in that case. It is the submission that the Boards Circular may be binding on the adjudicating authority but is not binding on the Tribunal. Ld. SDR would submit that any conversion of the bill of entry has to be done before the goods are exported. It is his submission that provisions of Section 149 of Customs Act, 1962 sought to be applied by the appellants would not be applicable for conversion of the bill of entry.
5. On perusal of the record, it is seen that the adjudicating authority while rejecting the application of the appellants for conversion of the bill of entry has clearly indicated that this is a mistake and that mistake has arisen due to the reason that the appellant was not aware of the formalities. It is also a fact that the goods were exported and the appellant had filed free shipping bill. I find that in an identical issue in respect of the very same Board Circular No.4/2004 co-ordinate bench of the Tribunal in the case of Nucleus Satellite Communications Pvt Ltd., (supra), the Tribunal held as under:-
I have carefully considered the case records and submissions by both sides. The exporter in this case had been making regular exports under DEPB scheme and by omission (of the CHA according to the appellant), the impugned export could not be entered under DEPB. The conversion of the shipping bill requested for is permissible in terms of the provisions of Section 149. I do not find any reason why the request should not be allowed in view of the above provision. The circular of the Board No.4/04 does not mention any statutory bar for denying the conversion claimed by the exporters. By denying export incentives granted by the Government through various schemes, the objective to promote exports will be defeated. In the circumstances the appeal filed by M/s.Nucleus Satellite Communications Pvt Ltd., is allowed.
6. Further, I find from the submissions made by the Counsel that identical case free shipping bill conversion is to be allowed under the provisions of Section 149 of the Customs Act, 1962 as has been held by the Tribunal in the case of Man Industries as reported at 2006 (202) ELT 433. I also find that the said case was taken in appeal by the revenue in Customs appeal No.65/06 and Honble High Court of Bombay dismissed the appeal as reported at 2007 (216) ELT 15 (Bom).
7. Accordingly, to my mind conversion of free shipping bill into advance licence is covered in favour of the appellant by the decision of the Tribunal and the decision of the Honble High Court order.
8. As such, the impugned order is set aside and the appeal is allowed and the matter is remanded back for the limited purpose affecting the conversion of the shipping bill from free shipping bill to advance licence shipping bill. Appeal disposed off accordingly.
(Dictated in Court) (M. V. Ravindran) Member (Judicial) pj 1 4 2