Custom, Excise & Service Tax Tribunal
M/S Pratibha Pipes & Structural (P) Ltd vs Commissioner Of Customs (Ep), Mumbai on 26 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. IV
Appeal No. C/1269/06
C/CO/73/07
(Arising out of Order-in-Original No. 125/2006/CAC/CC/KAP dated 4.10.2006 passed by the Commissioner of Customs (EP), Mumbai).
For approval and signature:
Honble Shri Anil Choudhary, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Pratibha Pipes & Structural (P) Ltd. Appellant Vs. Commissioner of Customs (EP), Mumbai Respondents Appearance: Shri Mayank Jain, Advocate for Appellant Shri D. Nagvenkar, Addl. Commissioner (AR) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 26.12.2013 Date of Decision: 26.12.2013 ORDER NO. Per: Shri Anil Choudhary This appeal is directed against Order-in-Original No. 125/2006/CAC/CC/KAP dated 4.10.2006 passed by the Commissioner of Customs (EP), Mumbai. The appellant is manufacturer of structural items and also vessels being pontoon etc. and also exported the same.
2. The appellant manufactured and exported pontoon vide Shipping Bill No. 5411422 dated 14.11.2005, FOB Rs.5,91,13,924.80. The structure was manufactured at Thane under Central Excise supervision and was exported under ARE-1 No. 002/05-06 dated 17.11.2005. The appellant had mentioned that he will be claiming benefit under DEPB scheme + EPCG licence and also re-exported under claim of duty drawback. On the shipping bill, duty drawback was erroneously not mentioned. When the appellant approached the excise authority for refund, it was pointed out to them that the shipping bill does not state about duty drawback claim and accordingly they will not be entitled to the refund of duty on the same. Accordingly, the appellant approached the customs authority immediately within a period of two months from filing of shipping bill claiming for amendment/conversion of the shipping bill, so as to enable them to avail the benefit of duty drawback. Vide Order-in-Original, the claim was rejected on the ground that the appellant exporter is placing reliance on ARE-!, which is specifically excise document and it merely mentioned export under claim of duty drawback and ARE-1 does not substitute a shipping bill under Drawback scheme. For claiming export benefits under Drawback scheme from Customs, shipping bill and declarations thereon are required. It was further observed that the claim of amendment/conversion of the shipping bill was received by the authority on 16.1.2006 and therefore, the provisions of Circular No. 4/2004 are applicable, wherein it is clarified that the conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed. As regards permitting conversion of shipping bills from one export promotion scheme to another, it is clarified that such conversion should only be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by the DGFT/MOC or Customs, due to any dispute. Such conversion may be permitted on merits by the Commissioner on case to case basis.
3. The appellant has made the ground that only due to clerical error the scheme was not mentioned in the shipping bill, whereas the same was mentioned on accompanying excise document in ARE-1 and he also relies on the ruling in the case of Man Industries (India) Ltd. Vs. Commissioner of Customs (EP) 2006 (202) ELT 433 (Tri-Mum), wherein it was held that the request for conversion of shipping bill was made in terms of the statutory rights available to the appellant under Section 149 of the Customs Act, 1962. The said section entitles the proper officer of Customs to direct amendment of any document, after it has been presented in Custom House. The statutory condition subject to which such amendment could or could not be made is described in the proviso to Section 149 of the Customs Act, which reads as under: -
Provided that no amendment of a bill of entry or a 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 the goods were cleared, deposited or exported, as the case may be. Accordingly, the Tribunal was pleased to allow the amendment. Being aggrieved, the Revenue approached the Hon'ble Bombay High Court and the High Court has upheld the order of the Tribunal observing that no question of law arises and accordingly refused to interfere with the order of the Tribunal. The appellant also relies on the ruling of the Tribunal in the case of Mahindra & Mahindra Ltd. Vs. Commissioner of Customs (Import), Nhava Sheva 2007 (215) ELT 385 (Tri-Mum), wherein excise duty paid on inputs used in manufacture of tractors exported under DEPB scheme, the word cum-drawback inadvertently not mentioned on body of shipping bill and drawback was claimed. For the said reason appellant Mahindra & Mahindra applied for amendment of shipping bill on the ground that such claim was mentioned in ARE-1, accompanying the shipping bill. The appeal was allowed by the Tribunal holding that such amendments are referred in the proviso to Section 149 of the Customs Act, as the claim was not mentioned in ARE-1, being annexed to the shipping bill, thus clearly it was stated that the goods were exported under claim of drawback.
4. The learned AR opposes the contention of the appellant stating that the mentioning of the claim of drawback was required on in the shipping bill for necessary verification by the customs authorities. In fact herein the claim for drawback has been already examined by the excise authorities and it appears from endorsement on ARE-1 that the same has been examined by the excise authorities. The reliance has been placed on the ruling of the Tribunal in the case of Tera Films Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2010 (261) ELT 226 (Tri-Del), wherein the amendment of shipping bill for benefit of drawback was refused by the Commissioner holding that it amounts to conversion of shipping bill and not merely amendment. Further, the goods are already exported and necessary endorsement was absent on accompanying documents also. The Revenue apprehended that since goods have already been exported, to cause verification to fix brand rate under drawback rules is physically impossible and hence, amendment was refused. The said refusal was upheld by the Tribunal and also by the Hon'ble High Court of Delhi. It appears from the facts recorded in the order of the case of Tera Film Pvt. Ltd. that the claim was made more than after a year and accompanying documents did not support the claim. Thus, the facts being different, the ruling is distinguishable and not attracted in the present case.
5. Having considered the rival submissions, I am of the considered view that the amendment in shipping bill should have been allowed and is accordingly being allowed by this Tribunal. The appellant is given liberty to approach the concerned authority for consequential relief within six weeks from the service of the order on them. Thus, the appeal is allowed with consequential relief.
(Dictated and pronounced in Court) (Anil Choudhary) Member (Judicial) Sinha 5