Custom, Excise & Service Tax Tribunal
Sterlite Technologies Ltd vs Ahmedabad on 20 July, 2018
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Zonal Bench, Ahmedabad
Appeal No. C/11020/2017-DB
(Arising out of Order-in-Appeal No. AHM-CUSTM-000-APP-096-16-17 dated
01.03.2017 passed by Commissioner (Appeals) Commissioner of Central
Excise, Customs and Service Tax-AHMEDABAD)
Sterlite Technologies Ltd. - Appellant
Vs.
C.C. Ahmedabad - Respondent
Represented by:
For the appellant : Shri Virat Chavda, Adv
For the respondent : Shri Sameer Chitkara, Addl. Commr. (AR)
CORAM:
Hon'ble Mr. Ramesh Nair, Member (Judicial)
Hon'ble Mr. Raju, Member (Technical)
Date of Hearing: 20.07.2018
Date of Decision: 30/07/2018
ORDER NO. A/11583/2018
Per: Ramesh Nair
The brief facts for the case are that the appellant exported the excisable goods namely Stranded Wire Cables, Plaited Bands and the likes through merchant importer M/s Jyoti Structures Ltd. in terms of Rule 19 of Central Excise Rule, 2002. During the month of September, 2014, the export order were placed by M/s Tanzania Electric Supply Co. Ltd (consignee) to M/s Jyoti Structures Ltd, Mumbai. Accordingly, M/s Jyoti Structures Ltd. prepared Commercial invoices for export of impugned goods, procured from the appellant, who is manufacturer of goods. The contention of the department is M/s Jyoti Structures Ltd. are ultimate exporter as is evident from ARE-1 and export documents. M/s Ultimate 2 C/11020/2017-DB Marine Pvt. Ltd., the Custom brokers of M/s Jyoti Structures Ltd electronically filed shipping bills and presented before the customs for permission of export of the goods. The shipping bill was assessed and allowed for shipment by the officers. The shipping bills issued made in the name of M/s Jyoti Structures Ltd (Exporter) and bill of lading in the name of appellant with remarks on behalf of M/s Jyoti Structures Ltd. Subsequently vide letter dated 10.03.2015, the appellant approached the Custom House Hazira for amendment of Shipping bills on the basis of NOC dated 07.03.2015 and letter dated 09.03.2015 of M/s Jyoti Structures Ltd for amendment of 24 shipping bills in respect of name of the exporter and value of the goods, certificate of respect of foreign currency from M/s JSL issued by the ICCI Bank Ltd. The adjudicating authority rejected the application of the appellant for amending of shipping bills. Being aggrieved by the order in Original the appellant filed the appeal before the Commissioner (A) interpreting the provision of section 49 which is meant for amending of documents that the amendment was sought in respect of goods which have been exported and as per the documents M/s Jyoti Structures Ltd is an exporter. Accordingly, upheld the order-in-original and rejected the appeal. Therefore, the appellant filed the present appeal.
2. Sh. Virat Chavda, Ld. Counsel appearing on behalf of the appellant submits that though the contract for export of the goods was initially ordered to M/s Jyoti Structures Ltd. but subsequently the appellant has supplied the goods in the capacity of exporter. In this regard, he referred to the contract between M/s Jyoti Structures Ltd and the appellant dated 21.08.2013. According to which the appellant is required to comply with all the requirements of the actual consignee M/s TANESCO which shows that the goods were exported by the appellant to TANESCO. He referred to the clause 10 according to which the export benefits to the extent of Sterlite invoices shall be in Sterlite's account. He, therefore, submits that as per the letter dated 30.04.2014 of M/s Jyoti Structures Ltd, there is a clear 3 C/11020/2017-DB instruction that shipper/ exporter name should be Sterlite Technologies Ltd. Invoice will be prepared by Sterlite Technologies Ltd. He also submits that M/s Jyoti Structures Ltd has given the No Objection Certificate dated 07/03/2015 wherein M/s Jyoti Structures Ltd certified that they have no objection in amending the shipping bills. As per the letter of M/s Jyoti Structures Ltd. dated 30.04.2014, the supply of goods to TANESCO has been assigned to M/s Sterlite Technologies ltd. The same has been intimated to TANESCO. He also referred to bill of lading wherein in the column of shipper, name of the appellant is appearing. In the shipping bill the invoice particulars issued by the appellant is appearing. The relevant documents referred by the Ld. Counsel are scanned below: 4 C/11020/2017-DB 5 C/11020/2017-DB 6 C/11020/2017-DB 7 C/11020/2017-DB 8 C/11020/2017-DB 9 C/11020/2017-DB With all these documents, it is clear that the goods have been exported by the appellant. Therefore, the appellant is exporter even though the export was made on behalf of M/s Jyoti Structure Ltd., hence, seeking amendment of shipping bills to the effect that the appellant is exporter is correct. And the same should have been allowed.
3. Shri Sameer Chitkara, Ld. Addl. Commr. (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
4. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that the goods manufactured and exported by the appellant is against such export in the bill of lading wherein the name of the appellant is appearing as exporter. Though the LC was opened by M/s Jyoti Structures Ltd. but the realization against export by the appellant was made in the foreign exchange in the account of the appellant. As per the contract the appellant is under obligation to comply with all the norms of foreign buyers M/s TANESCO. As per the contract, there is a clear terms that export benefit related to the invoice issued by the appellant shall be in appellants account and the invoices issued by M/s Jyoti Structures Ltd. The benefit of Export will be in their account. For this reason, M/s Jyoti Structures Ltd has given an NOC for making the amendment in the shipping bill. This clearly shows that the benefit against that the export of goods made by the appellant must be extended to the appellant only. Thus, from these facts, it is clear the appellant is the exporter of the goods, particularly to the extent of invoices issued by the appellant. No benefit can be claimed by M/s Jyoti Structures Ltd. after the amendment is not allowed. The export benefit which is legally available to the appellant cannot be denied. All the export benefits should be extended to the exporter of goods in the present case undisputedly to the appellant. The amendment was sought under section 149 of the Customs which is reproduced below:
10 C/11020/2017-DB "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 :
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."
As per the plain reading of the above section it is clear that even after export of the goods, the amendment of the document could be made if the details are existing in the documents of exports. In the present case as per the contract, bill of lading, invoice detail mentioned in the shipping bill, NOC given by M/s Jyoti Structures Ltd. it is clear that the actual exporter is the appellant. Therefore on the basis of these existing documents, the amendment in the shipping bill is clearly governed by section 149 and we do not see any reason why amendment cannot be allowed as per section
149. At the most, to avoid the mis-use, the Customs Department can obtain the disclaimer certificate from M/s Jyoti Structures Ltd. in respect of the export incentives limited to the invoice issue by the appellant. It is permitted under the law that when export is made by exporter through merchant exporter, the export benefits can be claimed either by the exporter or by the merchant exporter by giving disclaimer certificate by either side. Therefore, we do not see any reason to deny the amendment of shipping bills in the facts and circumstances of the present case.
Accordingly, the impugned order is set aside, appeal is allowed.
(Pronounced in the open Court on 30/07/2018)
(Raju) (Ramesh Nair)
Member (Technical) Member (Judicial)
DS