Conversion of free/drawback shipping bills to the advance authorisation scheme is permissible based on documentary evidence (CA certificates and Central Excise letters) when physical examination is no longer possible, provided the evidence is not rebutted by contrary evidence.

PER: R. BHAGYA DEVI

The impugned order is a de novo order passed by the Commissioner based on the directions of this Tribunal vide Final Order No.20104/2024 dated 02.02.2024. Originally the appellant was in appeal before this Tribunal to set aside the order of the Commissioner, which had rejected their request for amendment under Section 149 of the Customs Act, 1962 on the ground that it was time-barred. This Tribunal, considering the fact that the Section did not stipulate any time limit, allowed the appeal of the appellant and remanded it to the authorities concerned to consider the documents produced by the appellant and decide whether the appellant was entitled for conversion of the free shipping bills/drawback shipping bills to advance authorisation scheme. The Commissioner in the impugned order has rejected the request of the appellant for endorsing the free shipping bills drawback shipping bills and invoices with the advance authorisation scheme, hence this appeal.

2. The Learned Counsel submits that the Commissioner had rejected their request for conversion on the ground that the goods had been exported on the basis of free shipping bill without any due examination by the customs officers. The appellant relying on the decision of the Tribunal in the case of Essar Oil Ltd. Vs. CCE Kandla 2014 (309) ELT 344 to claim that the documentary evidence should be enough to consider their request. He also relies on the decision of Hon’ble High Cout of Gujarat in the case of Gokul Overseas vs. UOI : 2020 (373) ELT 49 (Gujarat) where the Hon’ble High Court had directed the authorities to consider conversion of free shipping bills to MEIS based on the documents filed by the appellant therein. They also relied on the following decisions:

• Metallic Bellows (I) Pvt. Ltd. vs. Commissioner of Cus. (Exports), Nhava Sheva: 2008 (228) ELT 479 (Tri.) upheld by Hon’ble High Court of Bombay 2009 (241) ELT 181 (Bom.)

• Oriental Carbon Chemicals Ltd. Vs. UOI : 2021 (377) ELT 850 (Guj.)

• M/s. Chamundi Textiles Ltd. Vs. CC : Final Order No. 20696/2021 dated 18.08.2021.

3. He further submits that the CEBC Circular No. 36/2010-Cus dated 23.09.2010 relating to examination norms for export of goods, directed the officers that in respect of the goods exported under EPCG/DEEC Scheme, the scale of examination to be 2% where FOB value is Rs.5 lakhs or below and 10% if the FOB value is more than Rs.5 lakhs. He further submits that after introduction of Risk Management System (RMS) for exports, the examination was done on a selective basis. Therefore, it is his contention that even if physical examination had been taken place, it could be only for the few consignments and hence, the Commissioner cannot reject the conversion only on the ground that the goods were not physically examined. The appellant has also placed on the record the letter issued by the Central Excise Authorities to claim that the appellant had fulfilled all the conditions of the export promotion scheme.

4. The learned Authorised Representative vehemently opposes the conversion of the free/drawback shipping bills to advance authorized scheme. It is his contention that the goods have been exported between 2014 to 2016 and the request for amendment of shipping bills was filed in 2020 which cannot be considered as a reasonable time. It is his submission that for availing the benefit under the advance authorisation scheme, the appellant had to declare list of raw materials both quantity and value for import and the finish goods exported both quantity