Time limitation imposed by circulars cannot override statutory provisions allowing for amendment of shipping documents under Section 149 of the Customs Act when addressing inadvertent coding errors.

JUDGMENT :

N. ANAND VENKATESH, J.

1. These appeals have been filed by the Commissioner of Customs against the order passed by the CESTAT, Chennai in No. FO/C/A40596 and A40597 of 2023 dated 21.07.2023 setting aside the order passed by the Commissioner of Customs and Central Excise (Appeals) dated 20.03.2020 permitting the amendment of shipping bills to indicate as Duty Free Import Authorisation (DFIA) Scheme as against free shipping bill.

2. The respondent had made two sets of applications for DFIA license before the Joint Director General for import of 1000 MT and 5 MT of raw cashew nuts. The shipping bills were filed through the Customs Broker and while filing shipping bills, the respondent had selected the code “00”, which pertains to free shipping instead of “26” which is the code for DFIA scheme. After the completion of the export, the respondent submitted a letter dated 26.12.2018 requesting to amend the shipping bills and to modify the option as DFIA scheme against free shipping bill.

3. The request made by the respondent was rejected by the Assistant Commissioner through his letter dated 31.12.2018. Aggrieved by the same, appeals were filed before the appellate authority and the same came to be rejected vide order dated 20.03.2020. Aggrieved by the same, the respondent filed two appeals before the CESTAT and the CESTAT through the impugned proceedings dated 21.07.2023, was pleased to allow the appeals. Aggrieved by the same, the department has preferred the present appeals.

4. When these appeals were entertained, the following substantial questions of law were framed by this Court on 25.03.2024:

“(i) Whether the Hon'ble Tribunal is correct in now considering the circular No.36/2010 with regard to the time limit and examination norms for which conversion of scheme is sought for?

(ii) Whether the Hon'ble Tribunal is correct in placing reliance on the judgment in the case of M/s. N.C. John & Sons Pvt. Ltd., which deals with claim for MEIS reward and not conversion of export promotion scheme for which examination norms are applicable?

(iii) When the consideration of the export is claimed under a beneficial scheme like DFIA can it be claimed as a matter of right to seek conversion, when it is only a concession and will it not vitiate the order of the Tribunal.

(iv) When the Assistant Commissioner is bound by the circulars issued by the Central Board of Indirect Taxes and Customs, can his order of rejection to consider the request for conversion of the shipping bill which was filed as free export to one under the DFIA scheme beyond the time limit prescribed under the board circular, be held as incorrect, particularly, when the same has also been upheld by the appellate authority?

(v) Whether the Tribunal is correct in entertaining an application filed at any point in time for conversion to the beneficial DFIA scheme stating that there is no such time limit prescribed in the act.

(vi) Whether the Tribunal is correct in placing reliance on the judgment in the case of Autotech Industries (India) Pvt. Ltd.  2022 (380) E.L.T. 364 (Tri.Chennai) which deals with conversion of Free Shipping Bill to Drawback Shipping Bill especially when Drawback is not an instrumental scheme like DFIA, DDFRC, DEEC etc?”

5. Heard the learned Senior Standing Counsel appearing for the appellant Department and the learned Senior Counsel for the respondent.

6. The learned