Case Law Details

Case Name : The Principal Commissioner Of Customs, Mundra Vs LYKIS Limited (Gujarat High Court)
Appeal Number : R/Tax Appeal No. 301 of 2020
Date of Judgement/Order : 02/02/2021
Related Assessment Year :
Courts : All High Courts (6436) Gujarat High Court (657)

The Principal Commissioner Of Customs, Mundra Vs LYKIS Limited (Gujarat High Court)

From the above Section, it is clear that no time limit is prescribed. We find that the request of the appellant for conversion was rejected on the sole ground of limitation as prescribed under Board Circular No. 36/2010­ Cus. We find that since the time limit has not been prescribed under the act, the same cannot be fixed by way of the circular. Therefore, if at all there is a time limit by way of circular, it is only procedural requirement. Therefore, on this ground of limitation, application could not have been rejected, particularly when circular prescribing time limit is without authority of any statutory provision, act and rules supported.

It is settled law that the time limit prescribed by the Board Circular is not binding as same is not statutory provision in terms of section 49 of the Customs Act 1962. We further find that in the identical case of Bectors Food Specialities Ltd. (Supra) this Tribunal, Chandigarh after considering the Hon’ble Gujarat High Court judgment in the case of Anil Sharma Vs. Union of India – 2017 (350) ELT 322 (Guj.) held that the assessee was entitled for conversion of shipping bill from DBK Scheme to DFIA Scheme. We after going through the said decision find that the circumstances and reason for delay in filing request for conversion was almost identical in the present case. In the case cited of co­ordinate Bench of this Tribunal Mumbai dealing with the identical issue in the case of Parley Product Pvt. Ltd (Supra) on the fact that the conversion of drawback shipping bill to DFIA shipping bill was after 2 years, wherein it was held that no time limit provided under section 149 of Customs Act, 1962.

As per our above discussion, we are of the view that the appellant is legally entitled for conversion of drawback Shipping Bills to DFIA Shipping Bills in respect of 184 Shipping Bills as per the list provided in appeal along with the appeal memo. The respondent commissioner is directed to issue necessary certificate enabling appellant to get the DFIA licenses revalidated.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

1. This appeal under Section­130 of the Custom Act, 1962 [for short ‘the Act, 1962′] is at the instance of the revenue and is directed against the order passed by the Customs, Excise & Appellate Tribunal, Western Zonal Bench, Ahmedabad dated 04.02.2020 in the Custom Appeal No.12215 of 2019 preferred by the respondent herein against the order of the Principal Commissioner, Customs, Mundra dated 24.07.2019, by which, the tribunal allowed the appeal.

2. The revenue has proposed the following questions of law for the consideration of this Court.

i) Whether benefit of conversion from Drawback scheme to DFIA scheme can be allowed at any time for the clearances which had taken place almost four years back?

ii) Whether the Tribunal was justified in holding that benefit of conversion from Drawback scheme to DFIA scheme can be allowed for exports made in past after the period of 3 months are over from the date of such export?

iii) Whether the Tribunal is correct in holding that the Circular is only laying down a procedural guideline and the conditions mentioned therein are not required to be fulfilled by the exporter to take the advantage of the scheme?

iv) Whether the Tribunal is justified in following the Judgment of Mumbai Tribunal and not appreciating the law laid down by this Hon’ble Court?

3. We have heard Mr. Ankit Shah, the learned senior standing counsel appearing for the revenue and Mr. Mihir Joshi, the learned senior counsel appearing with Mr. Hardik Modh, the learned counsel appearing for the respondents.

4. It appears from the materials on record that the respondents herein preferred an application addressed to the Principal Commissioner Customs, Mundra for conversion of 204 shipping bills from Drawback Scheme to Duty Free Import Authorization (DFIA) Scheme. The request came to be rejected by the Principal Commissioner Customs on the ground that the same was time barred. The Principal Commissioner Customs took the view that such a request was made for conversion after three months from the date of the Let Expert Order (LEO) and if such a request is accepted, the same would be contrary to the Circular No. 36/2010­ Cus dated 23.09.2010.

5. In appeal by the respondents before the tribunal, the tribunal took notice of section ­149 of the Customs Act, 1962. The tribunal noticed that no time limit has been prescribed under the statutory provision of Section ­149 of the Act. In such circumstances, the Circular cannot prescribe particular time period, which is otherwise not provided in a statute. The tribunal while allowing the appeal of the respondents herein observed as under:­

“4. We have heard both the sides and perused the records. We find that the appellant has sought for the conversion of Drawback shipping bills to DFIA shipping bills, in terms of Section 149 of Customs Act, 1962 which reads as under:­

“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 customs house to be amended)

Provided that no amendment of a bill of entry or 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 of the goods were cleared, deposited or exported, as the case may be.”

4.1    From the above Section, it is clear that no time limit is prescribed. We find that the request of the appellant for conversion was rejected on the sole ground of limitation as prescribed under Board Circular No. 36/2010­ Cus. We find that since the time limit has not been prescribed under the act, the same cannot be fixed by way of the circular. Therefore, if at all there is a time limit by way of circular, it is only procedural requirement. Therefore, on this ground of limitation, application could not have been rejected, particularly when circular prescribing time limit is without authority of any statutory provision, act and rules supported.

4.2 It is settled law that the time limit prescribed by the Board Circular is not binding as same is not statutory provision in terms of section 49 of the Customs Act 1962. We further find that in the identical case of Bectors Food Specialities Ltd. (Supra) this Tribunal, Chandigarh after considering the Hon’ble Gujarat High Court judgment in the case of Anil Sharma Vs. Union of India – 2017 (350) ELT 322 (Guj.) held that the assessee was entitled for conversion of shipping bill from DBK Scheme to DFIA Scheme. We after going through the said decision find that the circumstances and reason for delay in filing request for conversion was almost identical in the present case. In the case cited of co­ordinate Bench of this Tribunal Mumbai dealing with the identical issue in the case of Parley Product Pvt. Ltd (Supra) on the fact that the conversion of drawback shipping bill to DFIA shipping bill was after 2 years, wherein it was held that no time limit provided under section 149 of Customs Act, 1962.

5. As per our above discussion, we are of the view that the appellant is legally entitled for conversion of drawback Shipping Bills to DFIA Shipping Bills in respect of 184 Shipping Bills as per the list provided in appeal along with the appeal memo. The respondent commissioner is directed to issue necessary certificate enabling appellant to get the DFIA licenses revalidated.”

6. We are of the view that no error, not to speak of any error of law could be said to have been committed by the tribunal in passing the impugned order. Section­149 is applicable at the relevant point of time. In fact, the questions as proposed by the revenue cannot be termed as substantial questions of law as the issue is squarely covered by a decision of this Court in the case of Inter Continental (India) Vs. Union of India; (2003) 154 ELT 37 and the same is also upheld by the Supreme Court; 2008 SCC Online SC 22.

7. In the result, this appeal fails and is hereby dismissed.

ORDER IN CIVIL APPLICATION:­

As the appeal has been dismissed, the connected Civil Application also would not survive. The same is disposed of accordingly.

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