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2013 Supreme(Mad) 1311
High Court of Judicature at Madras
R. BANUMATHI & K. RAVICHANDRABAABU, JJ.
The Commissioner of Customs (Seaport-Export) Chennai
Versus
M/s. Suzlon Energy Limited, Pune & Another
Civil Miscellaneous Appeal No. 2566 of 2012
Decided On : 14-03-2013
For the Appellant:P. Mahaadevan, Advocate.
For the Respondents:R1, K.S. Venkatagiri, M/s. Lakshmi Kumaran, Advocates.
The main legal point established in the judgment is that the request for conversion of Shipping Bills must meet the conditions specified in the relevant circulars and involve a judicial exercise of discretion, considering the documentary evidence in existence at the time of export.
Headnote:
Conversion - Shipping Bills - Customs Act, 1962, Section 149 - Circular No.4/2004 - Circular No.36/2010 - The court considered the conversion of Shipping Bills from one export promotion scheme to another under Section 149 of the Customs Act, 1962, and the relevant circulars. The court highlighted the conditions for allowing conversion and the requirement of evidence for rejection of the benefit claimed under the export promotion scheme. The court also discussed the revenue implications and the need for verification of materials used in the export product.
Fact of the Case:
The 1st Respondent, engaged in the export of Wind Operated Electricity Generator and parts, sought to convert Shipping Bills from Drawback and EPCG Scheme to EPCG Drawback and DEEC Scheme. The Customs Department rejected the request, leading to an appeal before the CESTAT.
Finding of the Court:
The court found that the request for conversion was not maintainable as it involved a change of the entire status and character of the documents, and not a simple amendment. The court upheld the rejection of the request for conversion and allowed the appeal filed by the Department.
Issues: The key issues included whether the conversion of Shipping Bills could be allowed under Section 149 of the Customs Act, the requirement of evidence for rejection of the benefit claimed under the export promotion scheme, and the revenue implications of the conversion.
Ratio Decidendi: The court held that the request for conversion was not maintainable and was rightly rejected by the Commissioner of Customs. The court emphasized the need for verification of materials used in the export product and the conditions for allowing conversion under the relevant circulars.
Final Decision: The court set aside the order passed by the Tribunal and allowed the appeal filed by the Department, answering the questions of law in favor of the Department.
R. Banumathi, J.
1. Whether conversion of Shipping Bills from Drawback and EPCG Scheme to EPCG Drawback and DEEC Scheme could be allowed under Section 149 of Customs Act is the question falling for consideration in this appeal preferred by the Department. The appeal was admitted on the following substantial questions of law:-
"1. Whether conversion of Shipping Bills without any proof for rejection of their request for allowing the benefit on export promotion scheme by DGFT, is appropriate in terms of Circular No.4/2004 dated 16.01.2004?
2. Whether the conversion of the Shipping Bills can be allowed under Section 149 of Customs Act, 1962 as the said Section deals with amendment only?
3. In this case, the request made by the party for addition of DEEC Scheme to their Shipping Bills, would not it amount to reassessment of the Shipping Bills? If so whether re-assessment of the Shipping Bills can be dealt under the provision of Section 149 of the Customs Act, 1962?"
2. 1st Respondent – M/s.Suzlon Energy Limited is engaged in manufacture of export of Wind Operated Electricity Generator and parts thereof. 1st Respondent had been importing raw material required for the manufacture of export production viz., blades for rotor 2100 KW Model Suzlon Branch Wind Operated Electricity Generators under Advance Licence (Advance Authorisation) No.3110034801/2/03/00 dated 08.8.2008 issued by the Joint Directorate General of Foreign Trade, Pune after executing a bond with Customs Department for fulfilment of export obligation within the stipulated time. The export goods in question were in deed manufactured using exempted materials used for manufacture of export product in the above referred Advance Licence and few other items. 1st Respondent filed five Shipping Bills bearing Nos.3681452 dt. 17.3.2010; 3681453 dt. 17.03.2010; 3686416 dt. 21.3.2010; 3686417 dt. 21.03.2010 and 3687396 dt. 22.03.2010 under "Drawback and EPCG Scheme" (Scheme Code 44) for export of Wind Operated Electricity Generator – Blades for rotor 2100 KW and completed the export. Later, 1st Respondent vide letter dated 05.4.2010 stated that while preparing the Shipping Bills for the above exports, the Scheme code was mistakenly selected as "44" i.e. Drawback and EPCG Scheme instead of "71" EPCG, Drawback and DEEC Scheme and requested for issuance of 'No Objection Certificate' for converting the aforesaid Shipping Bills to the Scheme "EPCG, Drawback and DEEC Scheme. In support of their claim, 1st Respondent submitted documents viz., E.P. copy and Exchange Control copy of original Shipping Bills, Bill of Lading, Mate Receipt, Invoice and Packing list, copy of DEEC licence, branches list, registration of Licence and check list. In their written submission dated 05.7.2010, the 1st Respondent interalia submitted that their request is not exactly falling under the category of conversion of the Shipping Bill and that it is only for rectification of the error in the Scheme code. 1st Respondent's request was rejected vide Order in Original No.13774/10 dated 09.12.2010 by the Commissioner of Customs (Exports) as the 1st Respondent has not produced any letter from DGFT/MoC or Customs rejecting their request for allowing the benefit on an export promotion scheme which were prescribed in Circular No.4/2004 dated 16.01.2004.
3. Aggrieved by the said order, 1st Respondent preferred appeal before Customs, Excise and Service Tax Appellate Tribunal (for short "CESTAT"). By the order dated 30.05.2011, CESTAT allowed the request for conversion claimed by the 1st Respondent stating that under Section 149 of Customs Act, conversion is possible on the documents in existence at the time of export and the Shipping Bills in question are supported by a Certificate from the Chartered Engineer and there is also an endorsement in the Chartered Engineer's Certificate with export particulars viz., Shipping Bill Nos. etc. Being aggrieved by the order of CESTAT, the Department has preferred this appeal
