IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL EASTERN ZONAL BENCH: KOLKATA REGIONAL BENCH – COURT NO. 1 (Arising out of Order-in-Original No. 04-Cus/CC/Conv. Of SB/17-18 dated 16.06.2017 passed by the Commissioner of Customs Central Revenue Building, 5^th Floor, Birchand Patel Path Patna (Bihar)800001)

M/s. Texmaco Rail And Engineering Limited : Appellant Belgharia, Kolkata-700056 VERSUS Commissioner of Customs ( Preventive), Patna : Respondent Central Revenue Building, 5^th Floor, Birchand Patel Path, Patna (Bihar)800001 APPEARANCE:

Shri Bhaskar Thakkar, CA, Ms. Sneha Nandi, Advocate, Shri Debanjan Ranu, Advocate for the Appellant Shri F. Ahmed, Authorized Representative for the Respondent CORAM:

HON’BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL)

HON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)

FINAL ORDER NO.76862/2025 DATE OF HEARING / DECISION: 19.06.2025 Order: [PER SHRI K. ANPAZHAKAN Texmaco Rail & Engineering Limited (herein after referred as Appellant), are engaged in heavy engineering and steel foundry. The appellant had entered into a contract with Upper Tamakoshi Hydropower Limited, Nepal, to supply hydro- mechanical items. The Appellant obtained Advance Authorization No. 0210196856 which was later on amended on 25.05.2016 for duty-free import of materials.

1.1. During the period from November 2013 to April 2015, the appellant made exports to Nepal through Raxaul LCS, vide 51 Shipping Bills, under the Drawback scheme, despite the availability of an Advance Authorization license. The Appellant applied to the Commissioner of Customs, Patna, for conversion of those shipping bills from Drawback Scheme to Advance authorization Scheme, on 14.06.2016. The Ld. Commissioner rejected the conversion application for the 51 shipping bills vide Order No. 04-Cus/CC/Conv. Of SB/17-18 dated 16.06.2017. Aggrieved against the rejection of their request for conversion, the appellant has filed this appeal.

2. The appellant submits that in the impugned order, the Ld. Commissioner has denied the application to convert shipping bills Advance Authorization Scheme, by citing the Circular no. 36/2010 dated 23.09.2010. As per the Circular, any applications for conversion of the shipping bill from one scheme to another requires to be filed within three months from the date of Let Export Order. However, in this case, the applications have been filed beyond the three months period prescribed in the said Circular.

2.1. With respect to the ground that the applications have been filed beyond the three months period prescribed in the Circular, the appellant submitted that the Circular No. 36/2010 dated 23.09.2010 cannot override the statutory provisions as laid down in Section 149 of the Customs Act, 1962 which prescribes no time limit for filing applications to convert the shipping bills. Section 149 of the Customs Act, 1962 only requires documentary evidence available at the time of export to support such conversions. Further, the appellant submitted that the three-month time limit specified in the said circular has been struck down by various High Courts as ultra vires to the Constitution of India and the parent Act. The said judgements have been upheld by the Hon'ble Supreme Court also.

2.2. In support of this claim, the appellant relied on the decisions of the Hon'ble Apex Court in the following cases:

(i) M/s. Mahalaxmi Rubtech Ltd. Vs Union of India [Special Civil Application No. 21636 Of 2019] (Gujarat HC). This decision has been affirmed by Supreme Court [(2023) 6 Centax

154 (SC)] enclosed as Annexure- B.

ii) Pinnacle Life Science Pvt. Ltd Vs Union of India [(2024) 16 Centax 340 (Bom.)]

2.2. Accordingly, the appellant submits that the applications filed by them cannot be rejected on the ground of delay in filing the applications.

3. The appellant further submits that the Ld. Commissioner has rejected the application for shipping bill conversion due to the CHA's error in filing the said shipping bills under the drawback scheme and based on the restricti