An inadvertent procedural error in a shipping bill, such as failing to select the intention to claim export incentives, does not justify the denial of substantive rights; such shipping bills can be amended under Section 149 of the Customs Act, 1962, if supporting documentation existed at the time of export.

PER: P.A. AUGUSTIAN

The issue in the present appeals is whether the application filed by the Appellants for amendment of the shipping bill can be allowed. In Appeal No. C/20532/2019, shipping bill dated 29.10.2015 to 31.03.2016 related to 123 exports are involved and in Appeal No. C/20930/2019, 3 shipping bills are involved.

2. In Appeal No. C/20532/2019, the Appellant M/s. CII Guardian International Ltd. had filed shipping bills for export of various spice products. All the goods exports covered under shipping bills were either under advance authorization scheme or draw back scheme. None of the shipping bills were free shipping bills. However inadvertently, in the shipping bills, the window against query with regard to intension of claiming MEIS benefit was mentioned as No instead of Yes. As a result, shipping bills were not electronically transmitted to DGFT portal for processing the MEIS script. Since Appellant could not claim their MEIS benefit due to non-transmission of shipping bill copies, Appellant requested the Respondent to allow amendment in the shipping bills to correcting the endorsement from No to Yes in the shipping bills. However the request was rejected and aggrieved by said order, an appeal was filed before this Tribunal. Thereafter this Tribunal as per Final Order No. 21016-21018/2019 dated 19.11.2019 held that:-

“7. After considering the submissions of both the parties and perusal of the material on record, I find that the Commissioner has failed to notice that the appellants have declared their intention to claim MEIS benefits in two cases out of three cases, the shipping bills which have been produced on record. The only lapse on the part of the appellant was that they have mentioned in the reward column as 'N' instead of 'Y', which is only a procedural defect. Further, I find that otherwise the appellant is entitled to claim MEIS benefit as per the export policy. Failure to mention Y in the reward column of the shipping bill for availing the benefit under MEIS scheme can be corrected by amending the shipping bill as held by the Hon'ble Madras High Court in the case of Pasha International cited supra. Further, I find that Hon'ble Delhi High Court in the case of Kedia (Agencies) Pvt. Ltd. (supra) has also allowed the amendment even in a situation where there was no declaration of intention whereas in the present case, the appellants have made the declaration on the front page of the shipping bills regarding their intention to claim the MEIS benefit except in the case of M/s. Kuruwa Enterprises. Further, I find that the other ports have allowed the amendment of shipping bill in identical situation. I also find that the issue in the present appeals are squarely covered by the decision of this Tribunal rendered in the case of M/s. N.C. John & Sons Pvt. Ltd. vs. Commissioner of Customs, Cochin vide Final Order No.20909/2019 dated 28.10.2019 and by the judgment of the Kerala High Court in the case of Mangalath Cashews & Ors. vs. Commissioner of Customs, Cochin. In view of my discussion above, I am of the considered view that rejection of request for amendment of shipping bills by the Commissioner is not sustainable in law and therefore, I set aside the impugned orders and direct the Custom Authorities to allow the amendment in the shipping bills as per the request of the appellants on production of certified copy of this order. Appeals are, accordingly, allowed”.

3. Aggrieved by said order, an appeal was filed by the Department and the Hon’ble High Court of Kerala vide judgment dated 08.11.2022 in CUS. Appeal No. 12/2020 observed that thi