[Order]. - This appeal is filed by the appellants against the impugned order, wherein the request for conversion of Shipping Bill No. 3780220, dated 11-6-2010 from Advance Licence Scheme to DEPB Scheme was rejected.

2. The brief facts of the case are that one M/s. Mesto Minerals (India) Pvt. Ld., Mumbai exported ‘fabricated steel hardware structure’ made out of MS & HR plates/sheets/strips to their counterpart in Brazil, vide the above mentioned shipping bill under Advance Licence No. 0410091384, dated 5-7-2007 with M/s. Diamond Engineering (Chennai) Pvt. Ltd. Appellants] as a third party exporter. On 27-7-2011, the appellants sought conversion of shipping bill from Advance Licence Scheme to DEPB Scheme on the ground that the shipping bill was wrongly filed under Advance Licence Scheme due to wrong communication of their customer i.e., M/s. Mesto Mineral (India) Pvt. Ltd., and that they have not availed any export benefit on the above mentioned shipping bill. It is also submitted that it took a very long time for the original documents to be brought from Brazil. The said request for conversion of shipping bill from Advance Licence Scheme to DEPB Scheme was rejected by the adjudicating authority on the ground that the Circular No. 36/2010-Cus., dated 23-9-2010 is not applicable. In this case, the shipping bill was filed prior to issuance of the said circular and it was also held that the request for conversion of shipping bill is to be made by the exporter within three months from the date of ‘let export order’ but, in this case, the request for amendment has been made after more than one year, therefore, in that circumstances the same request is hit by limitation prescribed under Circular No. 36/2010-Cus., dated 23-9-2010. It is also held that as no documentary evidence has been furnished by the exporter which existed at the time of export to support the request and the fact that the request for the same has been made after one year, therefore, the request was denied. Aggrieved from the said order, the appellants are in appeal before me.

3. Shri S. Jaikumar, learned advocate for the appellants submitted that while filing the shipping bill, there was a wrong communication that the same is filed against Advance Licence hereinabove. In fact, the export against the said Advance Licence had already been discharged by the exporter in May, 2009 itself but due to wrong communication, it was mentioned in shipping bill against Advance Licence. Therefore, the appellants filed for conversion from Advance Licence Scheme to DEPB Scheme, as they are entitled for such conversion as per Board’s Circular No. 36/2010-Cus., dated 23-9-2010. He further submitted that as the circular is beneficiary in nature, then the same should be made applicable retrospectively as held by the Hon’ble High Court of Delhi in the case of Estocorp India P. Ltd. v. Union of India reported in (Del.). He further submitted that although the Notification No. 4/2004, dated 16-1-2004 was relied upon by the adjudicating authority and denied the amendment in the shipping bill but the said circular has been considered by this Tribunal in several cases and has held that conversion of shipping bills from one scheme to another scheme is allowable, therefore, relying on those decisions the Circular No. 36/2010-Cus., dated 23-9-2010 was issued, wherein in paragraph 2, it was observed that it has also come to the notice of the Board that “the Tribunal in a series of judgments have held that amendment to shipping bill after export of goods is governed by proviso to Section 149 of the Customs Act, 1962 and if the requirements of the said proviso is fulfilled, conversion of shipping bills should be allowed”. Therefore, it was clarified that Commissioner of Customs may allow conversion of shipping bills from schemes involving more rigorous examination to schemes involving less rigorous examination for example, from Advance Authorisation/DFIA Scheme to Drawback/DEPB Scheme] or within the scheme involving same level of examination [for example, from Drawback Scheme to DEPB Scheme or vice versa] irrespective of whether the benefit of Export Promotion Scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not, therefore, he prayed that on merits the request be granted. On the limitation aspect, he submits that as per Section 149 of the Customs Act, 1962, no time-limit is prescribed, therefore, the appellants are entitled for conversion. He also submitted that the same view was taken by this Tribunal in the case of Commissioner of Central Excise, Nhava Sheva v. Crest Chemicals reported in 2009-TIOL-2125-CESTAT-MUM = (Tri.). He further submitted that the discretion under Section 149 of the Customs Act, 1972 for amendment of the shipping bill from one scheme to another is to be exercised judiciously and the same has not been done in the instant case, as the documents on the basis of which the amendment is sought are available at the time of export. Therefore, he prayed that the impugned order be set aside and conversion from Advance Licence Scheme to DEPB Scheme be allowed. He relied on the decisions of Leotex v. Union of India reported in (Ker.), Commissioner v. Amritsar Swadesh Textile Corpn. P. Ltd. reported in (Kar.), Commissioner of Customs v. Man Industries (I) Ltd. reported in (Bom.), Terra Films Pvt. Ltd. v. Commissioner of Customs, New Delhi reported in (Tri.-Del.) and Suchitra Components Ltd. v. Commissioner of Central Excise, Guntur reported in (S.C.) = (S.C.).

4. On the other hand, the learned SDR strongly opposed the contention of the learned counsel and submitted that the contention of the learned counsel that the adjudicating authority has not considered the Circular No. 36/2010-Cus., dated 23-9-2010 is not correct. In fact, the adjudicating authority has considered the circular and thereafter, their claim has been rejected as time-barred, as the same has been filed beyond the one year period, as held by the Hon’ble High Court of Delhi in the case of M/s. Terra Films Pvt. Ltd. v. Commissioner of Customs reported in 2011-TIOL-215-HC-DEL-Cus. = (Del.). He also relied on the decisions of M/s. Bharat Fritz Werner Ltd. v. Commissioner of Customs (Export), Nhava Sheva reported in (Tri.-Mumbai) and M/s. Activas Pharma Manufacturing Pvt. Ltd. v. Commissioner of Customs, Chennai reported in (Tri.-Chennai).

5. Heard both sides in detail and considered their submissions and the case laws relied upon.

6. In this case, the shipping bill was filed under Advance Licence Scheme. In fact, as EODC has already been completed in 2009, therefore, the appellants have sought for amendment in the shipping bill under Section 149 of the Customs Act, 1962 from Advance Licence Scheme to DEPB Scheme. Therefore, we have to examine the provisions of Section 149 of the Customs Act, 1962, which are reproduced herein as under :-

“Section 149 : Amendment of documents :- Save as otherwise provided in Section 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the Custom House to be amended :

Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.”

7. As per the provisions of Section 149 ibid, the Customs officer has discretion to authorise any shipping bill to be amended on the basis of documentary evidence which was in existence at the time when the goods were cleared/exported. From mere reading of the said provisions, it can be ascertained that there is no time-limit prescribed for conversion of shipping bills from one scheme to another and the only condition imposed is that on the basis of documentary evidence, which were available at the time when the goods were cleared/exported, the Customs officer can amend the document. As regards limitation, learned SDR has relied on the decision of Terra Films Pvt. Ltd. (supra) passed by the Hon’ble High Court of Delhi. In that case, the facts are that seven shipping bills were filed during the period Sept.’04 to Apr. ‘05, for amendment from ‘DEEC/DEPB’ to ‘DEEC/DEPB-cum-Drawback Scheme’, which was denied by the learned Commissioner, as the same was not in accordance with the decisions of this Tribunal in the case of M/s. Hero Cycles Ltd. v. Commissioner of Customs reported in 2004-TIOL-654-CESTAT-DEL = (Tri.) M/s. Smurti Pottery Works v. Commissioner of Customs, Kandla reported in (Tri.-Del.) and M/s. Sanghi Industries Ltd. v. Commissioner of Customs reported in (Tri.-Del.). The said order was challenged before this Tribunal and his Tribunal in its finding has observed that “one reason for not acceding to the request was that goods have already been exported and to cause verification to fix the brand rate under the Drawback Rules is physically impossible”. In view of the above, this Tribunal held that the decision taken by the learned Commissioner for denying the amendment of shipping bill in terms of Section 149 cannot be held to be arbitrary. In these set of facts, the Hon’ble High Court has observed as under :-

“6. As per proviso of this Section 149, no amendment of a shipping bill was to be allowed after the export goods have been exported except on the basis of the documentary evidence, which was in existence at the time the goods were exported. The submission of the leaned counsel for the appellant/exporter in this regard was that the exporter was in possession of all the documents at the time of export to show that it was entitled to claim under the DEPB/DEEC-cum-Drawback Scheme. From the plain reading of Section 149, it may be seen that exporter could not claim amendment in routine and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be exercised judiciously, but it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence in existence at the time the goods were exported. The Commissioner in the remand case has rightly observed that the present case in fact relates to the request for conversion of shipping bills from one Export Promotion Scheme to another and was not merely of an amendment in the shipping bill. The request was made for conversion from one scheme to another after the lapse of long period of more than one year. It was a case of request for “conversion” and not of “amendment” inasmuch as by converting from one scheme to another, it was not only addition of word ‘cum’ duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the Proper Officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived by the Commissioner has been rightly upheld by the CESTAT.

7. We do not see any perversity or illegality in the discretion exercised by the Commissioner in rejecting the request of the exporter of conversion/amendment from one scheme to the other after a lapse of more than one year. There is no reason to interfere in the findings of the fact arrived at by the CESTAT. Since, there is no question of law involved, the appeal is dismissed. No orders as to costs. Ordered accordingly.”

8. In the said decision as the goods have already been exported and require physical examination, for the amendment sought by the appellants, therefore, the Hon’ble High Court observed that as the shipping bills were filed beyond the one year period, as held by CESTAT in the facts of the above cited case is correct but in the instant case, there is no finding of the adjudicating authority that the documents on the basis of which amendment is sought require physical examination of the goods exported, for amendment under Section 149 of the Customs Act, 1962. Therefore, the time-limit observed by the Hon’ble High Court in the case of Terra Films Pvt. Ltd. (supra) is not applicable to the facts of the present case. In the case on hand, the adjudicating authority has denied the amendment on the following grounds :-

(i)      that benefit of Notification No. 36/2010-Cus., dated 23-9-2010 cannot be granted as export has taken place prior to that; and request is being sought after one year of filing of the shipping bill and as per Circular No. 36/2010-Cus., dated 23-9-2010, the time-limit is only three months, therefore, conversion of shipping bills was denied. Finally, he also observed that no documentary evidence has been furnished by the exporter.

9. In the case of Leotex (supra), the Hon’ble High Court Amritsar Swadesh Textile Corpn. P. Ltd. (supra), the Hon’ble High

“The Revenue has preferred this appeal against the order passed by the Tribunal holding that conversion from one scheme to another scheme is permissible and in those circumstances, the assessee is entitled to duty drawback. For the purpose, the Tribunal has remitted the matter back to the Appellate Commissioner.

The material on record discloses that the assessee had paid the duty in respect of indigenous goods. However, he did not claim the Cenvat credit. Therefore, he claimed benefit of duty drawback under the Drawback Rules. The Appellate Commissioner held that the circular or the rules do not permit such a duty drawback.

It is not in dispute that the Board has issued a circular clarifying the legal position that such a conversion is permissible. Once such a conversion is permissible, the assessee is entitled to duty drawback and benefit of duty drawback is a matter required to be calculated by the Appellate Commissioner. It is in those circumstances, after setting aside the finding of the Commissioner that such a conversion is not permissible, the Tribunal has remanded the matter back to the Commissioner to decide the permissibility of duty drawback in accordance with Rules. Therefore, the order passed by the Tribunal is in accordance with the law and does not suffer from any infirmity, which call for interference. In that view of the matter, we do not see any merit in this appeal.

In the light of what we have stated above, the appeal is rejected. The substantial questions of law framed in this appeal are answered in favour of the assessee and against the Revenue. However, the matter stands remitted to the Commissioner for determination of duty.”

10. Therefore, relying on the above said decisions, the Circular No. 36/2010-Cus., dated 23-9-2010 is applicable to the facts of present case and the appellants are entitled for conversion of the shipping bill from Advance Licence Scheme to DEPB Scheme as per Section 149 of the Customs Act, 1962. Further, on time-limit also, the facts of this case are not relevant to the facts of the cases that are relied upon by the learned departmental representative in the case of Terra Films Pvt. Ltd. (supra) and Section 149 of the Customs Act does not have any time-limit for amendment of the document. The only condition is that the document on the basis of which amendment is sought should be available at the time of export. Therefore, the amendment sought cannot be denied on the ground of limitation. Further, the adjudicating authority has held that no documentary evidence has been furnished by the exporter, therefore, the matter is remanded back to the adjudicating authority to examine the documents on the basis of which the amendment is sought and also to ensure as to whether those documents were available at the time of filing of the shipping bills or not and if those documents on the basis of which amendment is sought were available at the time of filing of the shipping bills, then the appellants are entitled for conversion of the shipping bills from Advance Licence Scheme to DEPB Scheme. In view of these observations, the matter is remanded back to the adjudicating authority to examine the documentary evidence as per the provisions of Section 149 of the Customs Act, 1962 as discussed above. Appeal is disposed of in the above terms.

(Pronounced in open court on 13-9-2012)