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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • MS SULEKHA BEEVI C.S MEMBER (JUDICIAL
Acts
  • Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, the Act)
  • Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962
  • Rule 12(1)(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995,
  • rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995.
  • SECTION 149 CUSTOMS ACT 1962
  • Sec. 149 of Customs Act, 1962 and 12(1)(a) of Drawback Rules
  • SECTION 5 LIMITATION ACT
  • Rule 57- I of the Central Excises and Salt Act, 1944
  • Sec. 47 read with Sec. 61(3) of the Customs Act, 1962
  • SECTION 29 LIMITATION ACT
  • Sections 149 and 154 of the Customs Act, 1962
  • SECTION 128 CUSTOMS ACT 1962
  • Rule 12(1)(a) of the Drawback Rules, 1995
  • section 27A of the Customs Act, 1962. 30.
  • Section 129A (1) of the Customs Act, 1962,
  • SECTION 27 A CUSTOMS ACT 1962
  • SECTION 5 LIMITATION ACT 1963
  • Rule 61(3) of the Customs Act, 1962.
  • section 27, section 28, section 124
  • Rule 12(1) of Drawback Rules, 1995
  • SECTION 28 CUSTOMS ACT 1962
  • Rule 12 of Drawback Rules, 1995
  • Rule 12(1)(a) of Drawback Rules.
  • Central Excise Rules, 2002
  • LIMITATION ACT 1963
  • CUSTOMS ACT 1962
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • MS SULEKHA BEEVI C.S MEMBER (JUDICIAL
Acts
  • Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, the Act)
  • Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962
  • Rule 12(1)(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995,
  • rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995.
  • SECTION 149 CUSTOMS ACT 1962
  • Sec. 149 of Customs Act, 1962 and 12(1)(a) of Drawback Rules
  • SECTION 5 LIMITATION ACT
  • Rule 57- I of the Central Excises and Salt Act, 1944
  • Sec. 47 read with Sec. 61(3) of the Customs Act, 1962
  • SECTION 29 LIMITATION ACT
  • Sections 149 and 154 of the Customs Act, 1962
  • SECTION 128 CUSTOMS ACT 1962
  • Rule 12(1)(a) of the Drawback Rules, 1995
  • section 27A of the Customs Act, 1962. 30.
  • Section 129A (1) of the Customs Act, 1962,
  • SECTION 27 A CUSTOMS ACT 1962
  • SECTION 5 LIMITATION ACT 1963
  • Rule 61(3) of the Customs Act, 1962.
  • section 27, section 28, section 124
  • Rule 12(1) of Drawback Rules, 1995
  • SECTION 28 CUSTOMS ACT 1962
  • Rule 12 of Drawback Rules, 1995
  • Rule 12(1)(a) of Drawback Rules.
  • Central Excise Rules, 2002
  • LIMITATION ACT 1963
  • CUSTOMS ACT 1962
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Smart Summary

Tribunal Opinion Summary — Customs Appeal No.41584 of 2019 (Final Order No. 42351 / 2021)

Factual and Procedural Background

The appellant, M/s. Autotech Industries (India) Pvt. Ltd., a manufacturer and exporter of automobile components since 1998, discovered during an audit that it had omitted to file shipping bills under the duty drawback scheme for certain exports made between 2000 and 2014. The appellant requested the Customs authorities to convert/amend free shipping bills into drawback shipping bills. The Commissioner of Customs issued a Show Cause Notice dated 20.02.2019 and ultimately rejected the appellant's request in Order-in-Original No. 69971/2019 dated 05.07.2019 on multiple grounds: (i) the conversion request was time-barred relying on CBEC Circular No. 36/2010-Cus dated 23.09.2010, (ii) the appellant's reasons for omission were unsatisfactory, and (iii) documents said to have been in existence at the time of export were not available for verification. The appellant appealed to the Customs, Excise & Service Tax Appellate Tribunal, Chennai. The appeal was heard, and the Tribunal pronounced its decision on 30.09.2021.

Legal Issues Presented

  1. Whether the Commissioner of Customs was justified in rejecting the appellant's request to convert/amend free shipping bills into duty drawback shipping bills.
  2. Whether the CBEC Circular No.36/2010-Cus (prescribing a three‑month window from the Let Export Order for conversion requests) can operate as a limitation on the power to amend under Section 149 of the Customs Act, 1962.
  3. Whether the absence of documents in departmental records (given the department's practice of retaining documents for limited period) can be a ground to deny amendment under Section 149, when the exporter furnishes copies of documents that were in existence at the time of export.
  4. Whether an application for amendment under Section 149 must be filed within a "reasonable time" and, if so, what principle should govern that assessment where the statute and rules prescribe no specific time limit.

Arguments of the Parties

Appellant's Arguments (summarized)

  • The appellant had filed formal requests (letters dated 09.10.2015 and 25.01.2016) seeking conversion and had submitted copies of shipping bills (and in some instances ARE‑1s and BRCs); therefore it was factually incorrect for the Commissioner to say the requests related to unspecified shipping bills or that documents were not furnished.
  • Section 149 of the Customs Act, 1962 and Rule 12(1)(a) of the Drawback Rules, 1995 do not prescribe any time limit for amendment or for making the declaration to claim drawback; where a time limit is necessary the statute expressly provides it in other provisions—hence the legislative intent was not to impose a time‑bar on amendments of shipping bills.
  • The proviso to Rule 12(1)(a) permits the Commissioner to exempt an exporter who failed to make the declaration for reasons beyond his control; the appellant had outsourced filing to specialists and the omission was inadvertent and beyond its control.
  • Documents such as ARE‑1, BRC and shipping bills were in existence at the time of export and were produced (copies were furnished); ARE‑1s corroborate factory removal and customs examination, and BRCs evidence receipt of consideration — these satisfy the requirement under Section 149's proviso.
  • Substantive right to drawback should not be denied merely for procedural omission; refusal defeats the purpose of drawback (and increases FOB) — conversion should therefore be allowed where eligibility is established by contemporaneous documents.
  • The appellant relied on several judicial decisions (cited in the appeal) to support the view that Section 149 does not prescribe a time limit and that circulars cannot oust statutory powers.

Respondent's (Revenue) Arguments (summarized)

  • The period involved spans 2000 to December 2014 and there has been long delay in seeking conversion; the initial application (09.10.2015) only covered Jan 2012–Dec 2014 and a later application (25.01.2016) expanded the claim to include 2000–2011.
  • CBEC Circular No.36/2010‑Cus dated 23.09.2010 prescribes that conversion requests should be made within three months from the date of Let Export Order (LEO); the appellant's requests are therefore time‑barred as per that circular.
  • Rule 12(1)(a) requires the exporter to make a declaration at the time of export that drawback is being claimed; the appellant failed to make that declaration and the reason offered (ignorance of entitlement) is not satisfactory nor beyond the control of the appellant.
  • The department typically retains official documents for five years; documents relevant to 2000–2011 period were not available in departmental records for verification.
  • Given the delay and the lack of satisfactory explanation, the Commissioner correctly rejected the conversion requests.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Essar Oil Ltd. v. Commissioner of Customs, 2014 (309) ELT 344 (Tri. Ahmadabad) Conversion should be allowed where denial of drawback effectively forces exporter to export taxes as part of FOB; equitable basis for conversion. Tribunal cited the decision to support the view that conversion of free shipping bills to drawback shipping bills should be allowed to avoid unintended export of taxes.
Diamond Engg. (Chennai) P. Ltd. v. Commissioner of Customs, 2013 (288) ELT 265 (Tri. Chennai) Section 149 has no time limit for amendment; only requirement is existence of documentary evidence at time of export. Used to support the proposition that amendment cannot be denied on limitation grounds where contemporaneous documents exist.
CC v. Pee Tee Coach Builders Pvt. Ltd., 2018 (363) ELT 176 (Tri. Mumbai) Board circulars cannot curtail or restrict the jurisdiction vested in quasi‑judicial authorities under statute. Cited to support the proposition that a CBEC circular cannot override the statutory power under Section 149.
Nucleus Satellite Communications Pvt. Ltd. v. CC, 2007 (216) ELT 67 (Tri. Chennai) Board circular does not create statutory bar to conversion; denying export incentives defeats export promotion objectives. Relied upon to demonstrate that a circular cannot be used to deny conversion where statute/rules permit it.
M/s Hewlett Packard Enterprises v. Joint Commissioner of Customs, 2021 (375) ELT 488 (High Court) Proviso to Section 149 permits amendment after clearance/export if contemporaneous documents existed; documents need not already be on departmental record — exporter may produce them. Tribunal relied on the High Court's rejection of the revenue's submission that documents must already be available with the department; used to hold that rejection for alleged non‑production of documents was untenable.
Global Calcium Pvt. Ltd. v. Commissioner of Customs, Chennai (CMA No.875 of 2017, High Court) CBEC Circular No.36/2010 cannot be used to apply a time‑bar where Section 149 and Rule 12(1)(a) do not prescribe time limits. Relied upon to support the finding that the three‑month period in the circular does not restrict the statutory power to amend under Section 149.
Dimension Data India Pvt. Ltd. v. Commissioner of Customs, 2021 (376) ELT 192 (Bombay High Court) Section 149 allows amendment based on documents in existence at the relevant time; authorities must pass speaking orders and give opportunity to establish claim/classification. Used to reinforce the principle that amendment can be permitted and procedural safeguards (speaking order, opportunity to be heard) should be followed.
Collector of Customs v. TVS Whirlpool, 1996 (86) ELT 144 (Tri.) Where statute does not prescribe a limitation period, a reasonable period should be read in; courts/tribunals have applied this principle to customs matters. Invoked by the Tribunal to support the approach that remedy under Section 149 must be sought within a reasonable time; used in assessing the appellant's delay.
Government of India v. Citedal Fine Pharmaceuticals, 1989 (42) ELT 515 (Supreme Court) In absence of specified limitation, authorities must exercise power within a reasonable period; reasonableness is fact‑specific. Applied as the foundational authority for the proposition that where no statutory time limit exists, a reasonable period must be read in; supported Tribunal's discussion on limitation.
Delta Impex v. Commissioner of Customs, 2004 (173) ELT 449 (Delhi High Court) Customs Act is a complete code; where Act prescribes condonation limits the application of Section 5 of the Limitation Act; special statute's scheme must be respected. Relied upon in the Tribunal's discussion about limitation and the inapplicability of Section 5 Limitation Act where Customs Act provides its own limitation/condonation scheme.
Usha International Ltd. v. Assistant Commissioner, 2019 (365) ELT 56 (Madras High Court) Referenced in the context of jurisprudence allowing amendment under Section 149/read with Section 154 and judicial approach to such amendments. Referenced by the Tribunal among authorities showing judicial approach to amendments under Section 149 and consequent remedies (as cited by other High Courts).
2000 (119) ELT A177 (Supreme Court) (as referenced) Affirmation of the Tribunal's approach that where no limitation is prescribed, proceedings must be initiated within reasonable time. Noted by the Tribunal as an instance where Supreme Court upheld the Tribunal's refusal to apply an inapplicable limitation; used to support the reasonable‑time approach.

Court's Reasoning and Analysis

The Tribunal proceeded in a stepwise manner applying statute, rules, circular and judicial precedents to the facts:

  1. Statutory Text: The Tribunal examined Section 149 of the Customs Act, 1962 and noted that it permits amendment of documents (including shipping bills) even after export subject to the proviso that amendment after export is permitted "on the basis of documentary evidence which was in existence at the time the goods were exported." The Tribunal observed that Section 149 does not prescribe any time limit for making an application for amendment.
  2. Rules and Proviso: Rule 12(1)(a) of the Drawback Rules, 1995 requires a declaration at the time of export for claiming drawback but its proviso grants the Commissioner discretion to exempt exporters who failed to comply for reasons beyond their control. The Drawback Rules similarly do not prescribe any fixed temporal limitation for the amendment/conversion of shipping bills.
  3. Board Circular: The Tribunal reproduced CBEC Circular No.36/2010 (paras 3–4) which provides that conversion requests "should" be made within three months from LEO and that free shipping bills are normally not to be converted. However, the Tribunal considered whether a non‑statutory circular can impose a limitation on the statutory power under Section 149.
  4. Judicial Precedents: The Tribunal relied on High Court and Tribunal decisions (including Hewlett Packard, Diamond Engineering, Global Calcium, Dimension Data and others) to conclude that: (a) Section 149's proviso contemplates amendment based on documents in existence at the relevant time and does not require such documents to already be on departmental record; (b) a Board circular cannot curtail statutory powers vested under Section 149; and (c) other authorities have accepted amendment beyond the three‑month window where contemporaneous documentary evidence is produced.
  5. Documentary Evidence: The Tribunal reviewed the appellant's submissions and the copies of shipping bills, ARE‑1 and BRCs that were produced. It held that these documents, if genuinely in existence at the time of export, satisfy the proviso to Section 149 because they establish export, description/quantity and receipt of consideration (BRC). The Tribunal accepted the reasoning in Hewlett Packard that the proviso is intended to give the exporter an opportunity to produce contemporaneous documents.
  6. Limitation/Reasonable Time: Despite finding no statutory time limit in Section 149 or Rule 12, the Tribunal confronted the policy concern of allowing stale claims after very long delays. Relying on precedent (including Government of India v. Citedal Fine Pharmaceuticals and Collector of Customs v. TVS Whirlpool), the Tribunal adopted the principle that where a statute prescribes no time limit, a "reasonable period" must be read in; what is reasonable is fact‑specific. The Tribunal stated that it was persuaded by the Limitation Act's Article 137 (three years) as a reasonable benchmark for applications under Section 149 and therefore assessed the appellant's two requests against that yardstick.
  7. Application to Facts: Applying the above principles, the Tribunal found that: (a) the request dated 09.10.2015 seeking conversion for Jan 2012–Dec 2014 did not involve an inordinate delay and the rejection of that request was therefore unsustainable; (b) the subsequent request dated 25.01.2016 that expanded the claim back to 2000–2011 involved an unreasonable and inordinate delay (beyond what the Tribunal treated as a reasonable period) and the rejection of that portion was justifiable.
  8. Conclusion on Document Availability: The Tribunal rejected the Revenue's contention that documents must already be available with the department. It held that Section 149 requires the exporter to furnish documentary evidence that were in existence at the relevant time and that the department's retention practices (e.g., storing documents for five years) do not alter the statutory requirement; consequently, rejection based on alleged non‑availability of departmental records was unsustainable where the exporter produced copies of contemporaneous documents.

Holding and Implications

Core Ruling: The appeal is PARTLY ALLOWED.

Direct disposition provided by the Tribunal (as pronounced):

  • The Tribunal set aside the Commissioner’s rejection insofar as it related to the appellant’s request dated 09.10.2015 (covering the period January 2012 to December 2014). The request for conversion for that period is allowed and consequential reliefs, if any, shall follow.
  • The Tribunal upheld the Commissioner’s rejection insofar as it related to the appellant’s later request dated 25.01.2016 insofar as it sought conversion for the period 2000 to 2011. That part of the impugned order is maintained.

Implications drawn in the opinion (explicit):

  • The Tribunal held explicitly that Section 149 and Rule 12(1) of the Drawback Rules do not prescribe any time limit for amendment/conversion; a Board circular prescribing a three‑month requirement cannot override the statutory provision. Therefore, a conversion cannot be summarily denied on the sole ground of the Board circular's time frame.
  • Notwithstanding the absence of a statutory time limit, the Tribunal endorsed the established principle that an amendment remedy under Section 149 must be sought within a reasonable time; the Tribunal expressed that a period of three years is a reasonable benchmark in the circumstances (as discussed in the opinion) and applied that assessment to the appellant's claims.
  • On the factual outcome, the decision directly benefits the appellant for the period Jan 2012–Dec 2014 (conversion allowed) but leaves the rejection for the earlier period (2000–2011) intact due to inordinate delay.
  • The Tribunal rejected the Revenue's contention that documents must already be available in departmental records; under Section 149 the exporter need only produce documentary evidence that was in existence at the relevant time—the departmental retention practice does not convert this requirement into an absolute bar.

This summary strictly reflects the findings, reasoning and disposition contained in the provided Tribunal opinion. No information has been added or inferred beyond what appears in the opinion text.

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    AUTOTECH INDUSTRIES (INDIA) PVT LTD v. COMMISSIONER OF CUSTOMS (IV), CHENNAI

    IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, CHENNAI Customs Appeal No.41584 of 2019 (Arising out of Order-in-Original No. 69971/2019 dated 5.7.2019 passed by the Commissioner of Customs, Chennai IV) M/s.Autotech Industries (India) Pvt. Ltd. Appellant SP-114, Ambattur Industrial Estate Chennai 600 058. Commissioner of Customs Respondent Chennai IV Commissionerate Custom House, No. 60, Rajaji Salai Chennai 600001. APPEARANCE: Ms. A. Aruna, Advocate for the Appellant Shri S. Balakumar, AC (AR) for the Respondent CORAM Honble Ms. SulekhaBeevi C.S., Member (Judicial) Honble Shri P. Venkata Subba Rao, Member (Technical) Final Order No. 42351 / 2021 Date of Hearing : 24.08.2021 Date of Pronouncement: 30.09.2021 Per Ms. SulekhaBeevi C.S. The appellant is aggrieved by the impugned order by which the Commissioner of Customs has rejected the request for conversion of free shipping bills to drawback shipping bills.

    2. Brief facts are that appellants are engaged in manufacturing and exporting of automobile components since 1998. During the audit of their accounts, they came to realize that they omitted to file the shipping bills under drawback scheme at the time of exports. The appellant then made request to the department for conversion / amendment of the free shipping bills to drawback shipping bills. Show Cause Notice dated 20.2.2019 was issued proposing to reject the request for conversion of Shipping Bills on the ground that the request for conversion / amendment of Shipping Bills pertaining to exports made during the period 2000 to 2014 is barred by limitation as provided in CBEC Circular No. 36/2010-Cus. dated 23.9.2010. After due process of law, the original authority vide order impugned herein, rejected the request on the grounds; that the reason put forth by the appellant for omission to file drawback shipping bill at the time of exports is not satisfactory, the request is barred by limitation as per Board Circular and that the documents which were in existence at the time of exports are not available.

    3. The learned counsel Ms. A. Aruna appeared and argued for the appellant. The grounds put forward in the appeal as well as the submissions made at the time of arguments are summarized as under:- (a) The discussion given in the impugned order for arriving at the aforesaid grounds of rejection are as below:-

    (i) The appellant requested for conversion of unspecified number of shipping bills for the years from 2000 to 2011.

    (ii) The appellant has not furnished the shipping bills copies as well as the ARE1s, which were in existence at the time of export.

    (iii) The claim of appellant/exporter that they were not aware of their entitlement of drawback is not satisfactory considering the volume and value of exports made during the said period.

    (iv) The appellant has not adduced sufficient reason to prove that they omitted to file declaration at the time of export due to reasons beyond their control.

    (v) Maximum period of retention of any official documents is 5 years and in this case the request goes beyond the normal record keeping period and the shipping bills will not be available with the Department for verification of exports.

    (vi) Thus, the request is mainly barred by limitation of time (b) Section 149 of the Customs Act, 1962 provides for amendment of shipping bill. Rule 12 of Drawback Rules, 1995 lays down the procedure to file the shipping bill to claim drawback. The original adjudicating authority failed to consider the fact that neither section

    149 of Customs Act, 1962 nor Rule 12(1)(a) of Duty Drawback Rules provides for any time limit. Wherever required, Customs Act has specifically provided time limit; such as section 27, section 28, section

    124 etc. It is obvious from this that it was not the intention of the legislature to restrict the amendment of shipping bills or conversion of shipping bills by time limit. Hence the impugned order is against law. (c) The appellant vide their letter dated 9.10.2015 had made request for conversion / amendment of 1723 shipping bills covering the period from January 2012 to December 2014 .Along with the said letter they had submitted all the copies of shipping bills. Later, vide letter dated 25.1.2016, they requested for conversion of further Shipping bills and submitted copies of all the shipping bills and the corresponding BRCs (Bank Realization certificate). She adverted to the impugned order to contend that in the operative portion of the impugned Order in Original, it has been clearly stated that shipping bills listed in vide letter dated 9.10.2015 and 25.1.2016, this shows that the details of shipping bills were submitted by the appellant. Hence it is factually incorrect to state that the appellant requested amendment for unspecified number of shipping bills. It is asserted by the learned counsel that the appellant had submitted all the copies of the shipping bills to the office of the respondent. (d) The appellant had also submitted sample copies of ARE1 and would have submitted the remaining ARE-1 if the respondent office had directed the appellant to produce them. In the SCN or during the personal hearing, the appellant was not put to notice that the documents produced are insufficient to consider the request for amendment. Had the appellant been informed at any point of time, before passing the impugned order, they could have furnished the documents once again. Rule 12(1)(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, reads as under:- Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate or rates and make a declaration on the relevant shipping bill or bill of export that

    (i) a claim for drawback under these rules is being made;

    (ii) in respect of duties of Customs and Central Excise paid on the containers, packing materials and materials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities: Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause; (b) furnish to the proper officer of Customs, a copy of shipment invoice or any other document giving particulars of the description, quantity and value of the goods to be exported. (e) As per Rule 12(1), the only procedural requirement for claiming drawback is to file declaration / make statement in the Shipping Bill that the goods are entitled to drawback. If there is any omission to state so, as per the proviso to Rule 12(1)(a), the Commissioner of Customs if satisfied that the exporter had failed to file declaration for reasons beyond his control, has the discretion to exempt from the provision of this clause. As per para 3 and 4 of the CBEC Circular No. 36/2010-Cus dated 23.9.2010 the conversion of Shipping Bill is permitted. (f) The appellant had outsourced the job of filing shipping bills, logistics and customs clearance to the specialist in the field. They failed to file the shipping bills under drawback scheme and hence, it was beyond the control of the appellant. (g) Further it is an undisputed fact that the goods exported by the appellant had suffered duty in India. It is also well settled principle that the exporter need not export duty along with the goods and this has been the stand throughout the world trade. Obviously, duty has to be paid only when goods are used in India and hence the appellant has a right to claim the duties suffered / paid / borne in respect of the exported goods. (h) Filing the declaration indicating entitlement of drawback is only a procedure. It is well settled law that substantial benefit cannot be denied for non-observation of procedure, that too when the assessee is otherwise eligible for the benefit and has fulfilled all other conditions. In the subject case, the appellant had paid duty on the inputs. They used duty suffered inputs and raw materials in the manufacture of export goods and the goods were subjected to examination and scrutiny of jurisdictional Central Excise authority as established by the document in the nature of ARE1s.

    (i) The appellant had requested to amend the shipping bills under section 149 of the Customs Act, 1962. The said provision of law allows amendment of any customs document, even after clearance of goods from customs, and the only condition provided therein is that the documentary evidence, based on which amendment sought, should have been in existence at the time of export / import. Further, proviso to Rule 12(1) of Drawback Rules, 1995 also allows conversion of Free Shipping Bills and no time limit is prescribed in this Rule also. (j) The shipping bills indicate the description, quantity, value and other particulars of the goods exported. The goods were allowed for export after due verification of such description. Hence, when goods were allowed to be exported, it is to be presumed beyond all reasonable doubt that customs had accepted all the details / description given in the shipping bills. (k) Further, the ARE1s, which are in the nature of the Central Excise documents, were available at the time of export as seen from the shipping bills, where the details of ARE1 are entered. The ARE1s were endorsed by the jurisdictional Central Excise officers to authenticate the description, quantity, value and other material particulars, which very well fulfill the requirement under section 149 of Customs Act, 1962.

    (l) There is no time limit provided under section 149 or under proviso to Rule 12(1)(a) of Drawback Rules. The observation that documents are kept for five years only by the department is not on sound footing. The subject shipping bills are filed under EDI system, hence the same can be retrieved at any time. The appellant having furnished copies of all the shipping bills, there is no ground to reject on the basis of lack of documents. All the documents, such as shipping bills, invoices, ARE1 were very well available and were in existence at the time of export of the subject goods. Hence, the ground of absence of documents in existence at the time of export is factually incorrect.

    4. The learned counsel relied upon various decisions. In Essar Oil Ltd. Vs. CC 2014 (309) ELT 344 (Tri. Ahmd.), it was decided that in the case in hand if the duty drawback is not allowed to the appellant, the appellant is perforce required to export the taxes, which gets included in the FOB value. In our view, this being not the intention, conversion of free shipping bills into drawback shipping bills needs to be allowed.

    5. The Tribunal in the case of Diamond Engg. (Chennai) P. Ltd. Vs. CC 2013 (288) ELT 265 (Tri. Chen.), in para 10 held that section 149 of the Customs Act, 1962 does not have any time limit for amendment of the document. The only condition is that the documents 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.

    6. In CC Vs. Pee Tee Coach Builders Pvt. Ltd. 2018 (363) ELT 176 (Tri. Mum.), it was observed that the Board of CBEC cannot issue circular to restrict the use and exercise of jurisdiction vested in the quasi-judicial authorities. Similar view was taken in the case of Nucleus Satellite Communications Pvt. Ltd. Vs. CC 2007 (216) ELT 67 (Tri. Chen.), wherein it was held that the circular of the Board No.4/2004 does not mention any statutory bar for denying the conversion claimed by the exporters. By denying export incentives granted by the Government through various schemes, the objective to promote exports will be defeated. She prayed that the appeal may be allowed.

    7. The learned AR Shri S. Balakumar appeared for the department. He supported the findings in the impugned order. It is argued by him that the period involved is from 2000 to December 2014. There is much delay in filing the request for conversion of the free shipping bill into duty drawback shipping bill. The appellant vide letter dated 9.10.2015 furnished details of FOB value as Rs.77,41,61,176.40 and drawback amount of Rs.1,40,90,563.85 for the period from January 2012 to December 2014 and furnished list of Shipping Bills for the corresponding period from January 2012 to December 2014. Thereafter, the appellant vide letter dated 25.1.2016 furnished revised FOB value as Rs.4,30,20,50,859.59 and drawback amount of Rs.8,11,20,455.25 and thereby including the Shipping Bills from the year 2000 to December 2011.

    8. As per CBEC Circular No. 36/2010-Cus. dated 23.9.2010, the request for conversion has to be made within three months from the date of Let Export Order (LEO). Para 3 and 4 of the Circular reads as under:-

    3. It is 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 Authorization/DFIA scheme to Drawback/DEPB scheme) or within the schemes involving same level of examination (for example from Drawback scheme to DEPB scheme or vice versa) irrespective of whether the benefit of an export promotion scheme claimed by the exporter was denied to him by DGFT/DOC or Customs due to any dispute or not. The conversion may be permitted in accordance with the provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on the basis of documentary evidence which was in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by the DGFT/MOC. The conversion may be allowed subject to the following further conditions:

    a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO).

    b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product.

    c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be.

    d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion.

    e) The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/ misdeclaration /manipulation has been noticed or investigation initiated against him in respect of such exports.

    4. Free shipping bills (shipping bills not filed under any export promotion scheme) are subject to 'nil' examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes etc.) should not be allowed. However, the Commissioner may allow All Industry Rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to Drawback Scheme shipping bill, in terms of the proviso to rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995.

    9. That as per Rule 12(1)(a) of the Drawback Rules, 1995 declaration has to be made at the time of exports, as to whether goods are eligible for drawback. Such declaration has not been made by appellant and the Shipping Bills were filed as Free Shipping Bills. The reason put forward by the appellant for failure to file declaration is not befitting and not beyond control. Rule 12(1)of Drawback Rules,1995 reads as under:- Statement/ Declaration to be made on exports other than by Post - (1) In the case of exports other than by post, the exporters shall at the time of export of the goods (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate or rates and make a declaration on the relevant shipping bill or bill of export that

    (i) a claim for drawback under these rules is being made;

    (ii) in respect of duties of Customs and Central Excise paid on the containers, packing materials and materials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities: Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause

    10. In para 9 of the Order in Original, the Commissioner has discussed that the request for conversion can be considered only if the exporter proves that the failure to file Declaration under 12(1)(a) was due to reasons beyond control. The reason given is that they were not aware of the drawback benefits and on coming to know they have put forward the request for conversion of the shipping bills. Considering the volume of exports made by them, this reason is not befitting. The appellants have not provided satisfactory reason to prove that the non-filing of declaration was beyond their control and therefore rejected the request for conversion of shipping bills. Further, the appellants have not furnished the shipping Bill copies as well as ARE 1s which were in existence at the time of export to verify whether they made any claim of drawback at the time of exports. For the period 2000 to 2011, they have not furnished details of shipping bills and have merely mentioned consolidated export value. Moreover, the department need to store documents only upto five years and the document which were in existence at the time of export are not available for verification. He submitted that the Commissioner has rightly rejected the request for conversion of the Shipping Bills.

    11. Heard both sides.

    12. The issue is whether the rejection of request for amendment / conversion of free shipping bills to duty drawback shipping bills is legal and proper.

    13. The appellant has made request for conversion of the shipping bills vide two letters as mentioned above. In the letter dated 25.1.2016, it is explained by them that drawback has been inadvertently not claimed by them while filing the shipping bills. In para

    3 of the reply to the Show Cause Notice the reason for omitting to claim drawback by filing drawback shipping bills is explained by the appellant as under:- The noticee have been exporting goods from 1998 onwards. During 2014 15, they faced difficulties in competing in the international market due to escalation in cost of production and competition. In order to reduce the cost of production, so as to complete in the international market, they hired auditors to conduct audit for the said purpose. From such audit only they came to know that they have been exporting taxes also in addition to exporting the goods which otherwise, could have been got back as duty drawback. As per drawback sub-serial No. 8409, subject goods are eligible for 2% drawback.

    14. On realizing the mistake / omission, the appellants vide their letters dated 9.10.2015 and 25.1.2016, requested the Commissioner to convert the Free Shipping Bills to Drawback Shipping Bill so as to sanction the drawback for the same. In the Annexure to the letter dated 9.10.2015, they have requested for conversion of Shipping Bills from the period January 2012 to December 2014. The details in the Annexure are as under:- Annexure Period INR FOB Value of Export INR DBK Amount

    1. January 2012 to March 2012 3,75,95,276.88 7,51,906.00

    2. April 2012 to June 2012 4,68,16,310.85 9,36,320.00

    3. July 2012 to September 2012 3,16,22,695.08 6,32,451.00

    4. October 2012 to December 2012 4,09,40,845.31 8,18,817.00

    5. January 2013 to March 2013 6,76,08,335.91 13,52,166.00

    6. April 2013 to June 2013 6,39,40,642.06 12,78,819.00

    7. July 2013 to September 2013 9,08,81,484.78 17,56,341.00

    8. October 2013 to December 2013 8,80,73,595.68 15,00,140.00

    9. January 2014 to March 2014 7,45,32,856.45 10,75,200.85

    10. April 2014 to June 2014 8,52,79,400.78 14,51,424.00

    11. July 2014 to September 2014 9,39,08,202.03 15,96,443.00

    12. October 2014 to December 2014 5,29,61,530.50 9,40,536.00

    15. In the subsequent letter dated 25.1.2016, the appellant has included the Shipping Bills from the year 2000 to 2011 also. The details of the annexure are as under:- Annexure Period INR FOB Value of Export INR DBK Amount

    1. For 2000 2001 Invoices 46,685,572.50 887,026.00

    2. For 2002 2003 Invoices 61,438,095.68 1,167,319.00

    3. For 2003 2004 Invoices 341,033,124.36 6,479,534.00

    4. For 2004 2005 Invoices 172,758,600.00 3,282,413.40

    5. For 2005 2006 Invoices 513,563,926.05 9,757,709.00

    6. For 2006 2007 Invoices 335,911,765.83 6,382,316.00

    7. For 2007 2008 Invoices 600,337,073.14 11,406,412.00

    8. For 2008 2009 Invoices 342,435,776.37 6,506,279.00

    9. For 2009 2010 Invoices 402,037,449.91 7,638,718.00

    10. For 2010 2011 Invoices 458,249,510.96 8,706,737.00

    11. For 2011 2012 (Upto Dec. 12) 253,438,788.39 4,815,328.00

    12. January 2012 to March 2012 37,595,276.88 7,51,906.00

    13. April 2012 to June 2012 4,68,16,310.85 9,36,320.00

    14. July 2012 to September 2012 3,16,22,695.08 6,32,451.00

    15. October 2012 to December 2012 4,09,40,845.31 8,18,817.00

    16. January 2013 to March 2013 6,76,08,335.91 13,52,166.00

    17. April 2013 to June 2013 6,39,40,642.06 12,78,819.00

    18. July 2013 to September 2013 9,08,81,484.78 17,56,341.00

    19. October 2013 to December 2013 8,80,73,595.68 15,00,140.00

    20. January 2014 to March 2014 7,45,32,856.45 10,75,200.85

    21. April 2014 to June 2014 8,52,79,400.78 14,51,424.00

    22. July 2014 to September 2014 9,39,08,202.03 15,96,443.00

    23. October 2014 to December 2014 5,29,61,530.50 9,40,536.00 4,302,050,859.59 81,120,455.25

    16. It is stated in these letters that they have produced the necessary documents in the nature of Shipping Bill, ARE-I, BRC etc. In the impugned order one of the reasons for rejecting the request is that the documents at the time of exports are not available. However, there is no such allegation raised in the Show Cause Notice which was issued on the basis of these letters. In the Show Cause Notice, the only ground raised is that the request for conversion is time barred.

    17. The only requirement under Sec. 149 to allow amendment is that the exporter has to produce documentary evidence which was in existence at the time of export. The department does not specifically dispute the export of goods. The appellants have furnished copies of Shipping Bills, BRC and ARE-1. These documents are sufficient to prove that goods manufactured by them using imported inputs were exported. The ARE-1 document would show that the goods have been removed from the factory for export after it has been examined / verified by the Superintendent of Central Excise. The reverse side of ARE-1 inter alia reads as under:- Certified that I have opened and examined the packages No. 5/12 and found that the particulars stated and the description of goods given overleaf and the packing list (if any) are correct and that all the packages have been stuffed in the container No. NIL with marks and the same has been sealed with Central Excise Seal Lead Seal.

    18. The above document would establish the description, quantity of the goods exported. The Bank Realization Certificate (BRC) would prove that consideration for the export has been received.

    19. The learned AR has argued that the documents are not available with the department and that it is usually stored only for five years. As per Sec. 149, the requirement is not that the documents should be available with the department. It merely states that the exporter has to furnish documentary evidence which were in existence at the time of exports. In the case of M/s. Hewlett Packard Enterprises which is referred by us later, this point was discussed in para 12 and 13 of the judgment. The contention of the Revenue that the documents should be available with the department was not accepted by the Honble High Court. The proviso gives an opportunity to the exporter/importer to furnish documents which were in existence at the time of export/import and get the error rectified. We therefore hold that the rejection of request on the ground that appellants did not furnish documents is factually and legally untenable.

    20. We may now address the issue of limitation which is the main ground for rejecting the request for conversion of free shipping bills to drawback shipping bills. The request for conversion/amendment of shipping bill is made under section 149 of the Customs Act, 1962. This section does not prescribe any time limit for filing an application for amendment of shipping bill. The said section reads as under:-

    149. Amendment of documents.Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended: Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorised 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.

    21. It can be seen that law allows amendment of the shipping bill even after the goods have been exported. The only requirement, as already discussed, is that the exporter has to produce documentary evidence which was in existence at the time when goods were exported.

    22. The question as to whether the conversion of the shipping bills can be allowed at a later stage after exports has been considered in a plethora of judgments. In the decisions relied by the learned counsel for appellant, this issue has been held in favour of the assessee allowing the conversion of shipping bill and reiterating that section 149 of Customs Act, 1962 does not prescribe any time limit.

    23. The jurisdictional High Court in the case of M/s. Hewlett Packard Enterprises Vs. Joint Commissioner of Customs 2021 (375) ELT 488 observed that the proviso in section 149 permits amendment even after clearance for home consumption, if contemporaneous documents to establish the export are supplied by assessee. In the said case, the writ petitioner imported goods during the period 24.7.2019 to 26.7.2019 by filing 17 bills of entry. The invoices contained an error while mentioning the unit price of the imported products which came to be perpetrated in the Bill of Entry as well. On realizing the error they approached the Customs authorities seeking amendment under section 149 of Act ibid. The amendment sought was rejected on the ground that the imported goods have already been cleared for home consumption. On 17.10.2019, the petitioner made a further request to which the officer vide communication dated 31.10.2019 referred to the judgment of Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata IV 2019 (368) ELT 216 and informed that petitioner could file refund for the excess customs duty paid. Yet another request was made on 21.11.2019 and documents in the nature of (i) Price list, (ii) Purchase order inter se the petitioner and its suppliers reflecting the correct unit price (iii) original invoices showing the error (iv) purchase order (v) remittance report on 3.1.2020 order was submitted. However, the request was rejected once again. The Hon'ble Court held as under:-

    11. Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were in existence at the time of the goods were cleared, deposited or exported to establish the error.

    12. The lis in this matter revolves around the interpretation of the phrase in existence, as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, on record that such amendment could even be considered.

    13. I cannot agree. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were in existence at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually in existence is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being in existence at the relevant time to evidence an error sought to be amended.

    14. In the light of the discussion as aforesaid, the rejection of the request for amendment by the respondent is set aside to be re-done de novo. This writ petition is allowed.

    24. The Hon'ble jurisdictional High Court in the case of Global Calcium Pvt. Ltd. Vs. Commissioner of Customs, Chennai vide judgment dated 29.6.2017 in CMA No. 875 of 2017 observed as under:-

    1. After some arguments, Mr. Derrick Sam, seeks to withdraw the captioned appeal. Learned counsel, however, says that he has only one apprehension, which is, that the Adjudicating Authority may subject the claim for duty drawback to the time limit of three months provided in the Circular No.36/2010-Cus., dated 23.09.2010 (in short, 2010 Circular).

    2. According to us, this apprehension is misplaced, as in paragraph

    6 of the order, the Tribunal has, clearly, stated that the time bar provision will not apply in this matter.

    3. Needless to say, since, the Revenue has not come up by way of cross objection, they cannot raise any cavil about limitation of three months prescribed in the Circular.

    4. We may also indicate that neither Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, nor Section 149 of the Customs Act, 1962, (in short, the Act) prescribes, any time limit for processing the claim of duty drawback. 4.1. Furthermore, Mr. Chopda, has not been able to show any other provision in the Act or, the Rules framed thereunder, which provide for a time limit for processing the claim lodged for duty drawback.

    5. As indicated above, the Tribunal has not accepted the stand of the Revenue that the Assessee's claim can be subject to time limit, as provided in the 2010 Circular.

    6. Accordingly, the appeal is dismissed as withdrawn. Resultantly, pending application shall stand closed. There shall, however, be no order as to costs.

    25. In the above judgment, the Hon'ble High Court has referred to the Board Circular, Sec. 149 of Customs Act, 1962 and 12(1)(a) of Drawback Rules and opined that the apprehension of the counsel for petitioner that the request for conversion would be subject to scrutiny on the ground of limitation is for no reason.

    26. The Hon'ble High Court of Delhi in the case of Dimension Data India Pvt. Ltd. Vs. Commissioner of Customs 2021 (376) ELT

    192 (Bom.) has examined the very same issue. In the said case, the Bills of Entry dated 15.3.2019 to 25.4.2019 were sought to be amended. During internal audit, the petitioner realized that it had made inadvertent typo error at the time of filing the Bill of Entry by incorrectly declaring the CTH as 85176990 instead of correct CTH 85176930. For the goods under CTH 85176930, the rate of duty is NIL whereas in respect of goods under other heading, the rate of duty is 20%. The error resulted in payment of excess duty to the tune of Rs.14,50,01,413/-. Immediately, on detecting the error, a letter dated 7.6.2019 was submitted requesting to correct the bill of entry. The request was declined. The Hon'ble High Court referred to various decisions including the decisions in Hewlett Packard Enterprises (supra) and Usha International Ltd. Vs. Assistant Commissioner 2019 (365) ELT 56 (Mad.). The relevant paras read as under:-

    17. The Learned Counsel for the petitioners submits that the mistake in adopting the correct classification for the purpose of assessment can be rectified under Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962 a proper officer in his discretion may authorise any document to be presented. Section 149 of the Customs Act, 1962 reads as under :- Amendment to Documents. Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion authorise any document, after it has been presented in the Customs House to be amended : Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised 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.

    18. In WP Nos. 18891 to 18893 of 2017, this High Court by its decision dated 25-7-2017 has held that the only embargo under Section 149 of the Customs Act, 1962 is that a person seeking relief cannot rely upon a documentary evidence, which came into existence after the goods were cleared, deposited or exported, as the case may be. xxx xxxx xxxx xxxx

    26. With these observation, the above writ petitions are partly allowed with a direction to the 1st respondent or any other officer authorised under the Act :

    (i) to pass a speaking order in respect of assessment made in the 23 and 9 bills of entries of the respective petitioner under Section

    17 read with proviso to Sections 149 and 154 of the Customs Act, 1962 within a period of six month from the date of this order after giving adequate opportunity to the petitioners to establish the classification of imported wall fan under sub-heading 8414 51 90 following the principle [it] of natural justice.

    (ii) Refund any will be subject to the petitioner satisfying the test of unjust enrichment.

    27. The Commissioner has denied the request for conversion of shipping bills by resorting to the Board Circular. The relevant para 3 and 4 of the Board Circular No. 36/2010 has already been reproduced in para 8 above. By this Circular, a period of three months is prescribed to file the request for conversion / amendment. Section 149 does not prescribe any time limit for filing an application for amendment of document. No doubt that section 149 of the Customs Act, 1962 would prevail over the Board circular. Further, Rule 12(1) of the Drawback Rules,1995 which lay down the procedure to claim drawback also allows filing of belated declaration to claim drawback if the Commissioner is satisfied that the failure to file the declaration was due to reasons beyond the control of exporter. The Rules also does not limit the time. We have to hold that the request for conversion of Free Shipping Bill cannot be denied as time-barred by resorting to the Board Circular.

    28. Be that as it may, before concluding, we are not able to overlook a serious question presented by the peculiar facts of the case before us. In the absence of any period of limitation prescribed in the section, whether it would mean that the remedy / relief can be sought for at any time when the Importer / Exporter wake up to realize the mistake or omission. In our opinion, the remedy has to be sought for within a reasonable time. A legal claim cannot be enforced if there is a long delay in asserting the right or the claim.

    29. The duty drawback or drawback is a fundamental principle of international trade law and policy under which the duties, taxes and fees paid on imported inputs which are used for manufacture of goods and then exported are refunded. This is allowed in the nature of export promotion scheme and the intention is to eliminate the recovery of such costs (duty, taxes and fees) on the export goods in the international market. Chapter X of The Customs Act, 1962 provides for the law relating to drawback. Section 74 and 75 deals with two types of drawback. Section 74 of the Chapter speaks about drawback allowable on export of duty paid goods. Section 75 deals with drawback of imported materials used in the manufacture of goods which are exported which would be relevant for the case on hand. Sub-section (2) of this section lays down that Central Government may make rules for the purpose of carrying out the scheme of drawbacks. Section 75A speaks about interest. It states that when any drawback payable to a claimant under section 74 or 75 is not paid within a period of one month from the date of filing a claim for payment of such drawback, the claimant will be eligible for interest at the rate fixed under section 27A of the Customs Act, 1962.

    30. The Drawback Rules, 1995, as amended from time to time governs the procedure for claiming of drawback. Being an export promotion incentive, the procedure for claiming is also simple and hassle-free. The exporter is required to file a drawback shipping bill in the format as required under Rule 13 along with necessary declaration. The goods are examined by officers and a report made thereof. Copy of the drawback shipping bills which contains details of examination report is the claim copy for the drawback. The claim is then settled and passed by the officers of the customs department.

    31. We are fully conscious that the issue in this appeal is not for claim of drawback but only request for amendment of shipping bills. In fact, as per sub-clause (a) of the first proviso to Section 129A (1) of the Customs Act, 1962, the Tribunal has no jurisdiction to entertain an appeal if the order relates to payment of drawback under Chapter X. The fleeting glance in the above paras on the nature and scheme of duty drawback is only to equip ourselves while considering the huge delay on the part of the appellant in filing application for conversion of the free shipping bill to drawback shipping bill. Needless to say, that the consequence of such conversion is nothing but to put forward a claim for duty drawback.

    32. At the cost of repetition, it is stated that in the first application for amendment dated 9.10.2015 the period involved is from 2012 to 2014. In the second application dated 25.1.2016, the appellant has included the period from 2000 to 2011 also.

    33. Though section 149 of Customs Act, 1962 and Drawback Rules, 1995 do not specify any time limit, the huge and humongous delay does concern us. Under section 75A there is liability to pay interest on delayed payment of drawback. Conversely, it has to be construed that a claim of drawback has to be filed within reasonable time. The Limitation Act, 1963 bars unduly long time for pursuit of a legal remedy. Neither do courts encourage enforcing stale demands.

    34. Section 27 of the Customs Act, 1962 deals with claim for refund of duty. The refund claim under this section has to be filed within one year from the date of payment of duty. Section 28 deals with recovery of duty which is not paid or short-paid. While raising a demand for recovery of such duty the period is limited to two years. Prior to 14.5.2016, this period was one year. In case of fraud, collusion or suppression of facts, the said period for which the duty can be demanded and recovered is extended to five years. When the time limit is specifically prescribed, the same would apply and one need not take recourse to the Limitation Act.

    35. In the absence of any period of limitation prescribed, it is generally understood that every authority has to exercise the powers within a reasonable period. Conversely, any right that has to be enforced is to be sought without unreasonable delay. If the right is not enforced within reasonable time the remedy would stand extinguished. No hard and fast rule can be laid down to determine what is reasonable time. It depends upon the facts and circumstances of each case.

    36. In the case of Collector of Customs Vs. TVS Whirlpool 1996 (86) ELT 144 (Tri.) the question that came up for consideration was that what would be the limitation period for raising a demand of interest when there is no time limit prescribed for demand / recovery of interest under Sec. 47 read with Sec. 61(3) of the Customs Act, 1962 as it then stood during the relevant time. No period of limitation was prescribed in these provisions for recovery of interest. The facts are such that, though the assessee had paid duty with interest the department was of the view that assessee was liable to pay further amount as interest for which notice of demand was issued. The Tribunal followed the judgment of Honble Apex Court in Govt. of India Vs. Citedal Fine Pharmaceuticals 1989 (42) ELT 515 (SC) which has been already captioned in the above decision. The relevant portion of the order is reproduced as under:- "4. We have considered the submissions made by both sides. We observe that no period of limitation has been prescribed under Section 61(3). A reasonable period of limitation will have to be read under this section as held by the Honble Supreme Court in the case of Government of India v. Citedal Fine Pharmaceuticals - 1989 (42) E.L.T. 515 (SC). This Tribunal in number of cases where the demands were raised under Rule 57-I at a time when no period was prescribed for recovery of Modvat credit has held that the reasonable period of limitation would in that case would be six months or five years depending upon whether there was any suppression of facts involved or not. We observe that the scheme of the Customs Act is similar to the scheme of Central Excises and Salt Act and in that view of the matter we hold that similar view has to be taken in the case of recovery to be made under the Customs Act where no period of limitation has been prescribed. In this premise we therefore hold that the lower authoritys order is prima facie maintainable in law and the prayer of the department for stay of the operations of the order of the Ld. Lower Authority has to be dismissed. Inasmuch as it is a covered matter by our decisions referred to supra the appeals themselves are also taken up for disposal with the consent of the both sides. The only plea of the Revenue is that in the absence of any period of limitation provided under Section 61(3), the general period, of limitation prescribed under the Limitation Act should be made applicable. We are unable to accept this plea of the Ld. D.R. in view of the judgment of the Honble Supreme Court in the case of G.O.I. v. Citedal Fine Pharmaceuticals (supra). The Honble Supreme Court in para 6 has held is reproduced below : Ld. Counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article 14 of the Constitution, as it does not provide for any period of limitation for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 12, the officer may act arbitrarily in recovering the amount after lapse of long period of time. We find no substance in the submission. While it is true that Rule 12, does not prescribe any period within which recovery of any duty as contemplated by the Rule is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case.

    5. This Tribunal in the context of the demands raised under Rule 57- I of the Central Excises and Salt Act, 1944 when no period of limitation was prescribed under the said rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 1962. Here also we observe under Section 28 of Customs Act, 1962 period of limitation prescribed for recovery of duty is six months or five years as above and also the period for claim of refund is also six months. The position being similar we hold that the same logic should apply in respect of the recovery to be made under the Customs Act where no period of limitation has been prescribed. We therefore hold that the Ld. Lower Authority is right in holding that the demand for interest beyond the period of six months from clearance of goods is barred by limitation and we therefore uphold the order of the lower authority and dismiss the appeals. We observe that the relevant date for demand of duty would be date on which goods were allowed clearance from the Warehouse as the interest is required to be paid till the date of clearance in terms of Rule 61(3) of the Customs Act, 1962. The department recovered at the time of clearance the duty as well as interest as held payable at that time and cancelled the bonds. Taking into consideration the relevant date the demand have been clearly raised much after the period of six months. The Appeals of the Revenue are therefore dismissed.

    37. The Tribunal refused to accept the plea of Revenue that the limitation period of three years for recovery of money as per Limitation Act, 1963 should apply. The said decision of the Tribunal was upheld by the Hon'ble Supreme Court as reported in 2000 (119) ELT A177 (SC). The principle enunciated in these judgments is that when no limitation period is prescribed under the Act, the proceedings for recovery have to be initiated within a reasonable time.

    38. Again, section 128 of the Customs Act, 1962 provides for filing of appeals before Commissioner (Appeals). This section bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days. The question as to whether delay beyond six months can be condoned by resorting to section 5 of the Limitation Act, 1963 was discussed by the Hon'ble High Court of Delhi in Delta Impex Vs. Commissioner of Customs 2004 (173) ELT 449 (Del.). The relevant portion is as under:-

    12. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act.

    13. The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the Legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further.

    14. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of

    30 days, can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded.

    15. The expression expressly excluded in sub-section (2) of Section 29 of the Limitation Act means an exclusion by express words, i.e. by express reference and not exclusion as a result of logical process of reasoning. In the instant case, there is no question of implied exclusion but, it specifically provides a different period of limitation, as also the period during which, if delay has occurred, it could be condoned.

    39. The Hon'ble High Court held that when the Act provides for different period of limitation, the applicability of section 5 of the Limitation Act is specifically excluded.

    40. Reverting to the case on hand, although no limitation has been prescribed in section 149, an assessee cannot be permitted to take undue advantage. The remedy of amendment under section 149 should be sought within a reasonable time. We have already expressed our view that there is inordinate delay in filing the application for amendment under section 149 of the Customs Act, 1962. We then have to consider what would be the reasonable period for entertaining an application under section 149 of the Customs.

    41. The Customs Act, 1962 being a special law and a complete code in itself it would not be proper to pull in the limitation period under the Limitation Act, 1963 and make it applicable to section 149. More so, because section 149 does not deal with any recovery of duty or refund of duty. It is a section merely to permit amendment in documents. Amendment is purely a procedural requirement. The legislature in its wisdom has not prescribed either in the Act or Rules a time limit to fulfill this procedural requirement. The consequence of such amendment as already stated, is to claim refund of duty suffered on inputs in the nature of drawback. The Limitation Act limits the period for filing a suit for recovery of money to three years. As per Article 137 of the Schedule to The Limitation Act, 1963 any application for which no period of limitation is provided elsewhere is three years from the time when the right to apply accrues. We are unable to refrain ourselves from being not persuaded by these provisions in the Limitation Act to hold that a period of three years would be a reasonable time for filing an application under section 149.

    42. The application dated 9.10.2015 contains request for amendment of Shipping Bills for the year 2012 to 2014. It gives details of shipping bills for three years (Jan. 2012 to Dec. 2014). The second application dated 25.1.2016 made by the appellant is only an afterthought by which appellant has included Shipping Bills from the year 2000 to 2011. We hold that there is unreasonable delay in filing the request for amendment of Shipping Bills from the year 2000 to 2011 and the order of rejection in respect of these Shipping Bills is just and proper.

    43. In the result, we hold that

    (i) The rejection of the request for conversion / amendment of Shipping Bills vide letter dated 9.10.2015 (for the period Jan. 2012 to Dec. 2014) is to be set aside and we hereby do. The request for conversion is allowed with consequential reliefs, if any.

    (ii) The rejection of the request for conversion / amendment of Shipping Bills vide letter dated 25.1.2016 (for the period 2000 to 2011) is upheld. The impugned order is modified as above. The appeal is partly allowed in above terms. (Pronounced in open court on 30.09.2021) (SULEKHA BEEVI C.S.) Member (Judicial) (P. VENKATA SUBBA RAO) Member (Technical)

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    AUTOTECH INDUSTRIES (INDIA) PVT LTD v. COMMISSIONER OF CUSTOMS (IV), CHENNAI
    (Sep 30, 2021)