POLYDRUG LABORATORIES PVT. LTD. Vs. C.C. (GENERAL)

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Appeal No. 316/MCH/AC/CFS(M)(X)/2012, dated 26 -6 -2012 passed by Commissioner of Customs (Appeals), Mumbai, Zone -I, wherein Order -in -Original No. 2/RCC/AC (CFS -M), dated 19 -1 -2011 was upheld by the Commissioner of Customs (Appeals). The fact of the case is that the appellant exporter while exporting the said goods filed 3 free shipping bills Nos. 7158011, dated 4 -11 -2009, 7153804, dated 31 -8 -2009 and 7153624, dated 28 -8 -2009. With intention to avail incentive under VKGUY Scheme, they sought amendment in the said shipping bills under Section 149 of Customs Act, 1962. The Asst. Commissioner of Customs by speaking order dated 19 -1 -2011 rejected the request of the appellant on the ground that; it is mandatory requirement to mention intent of VKGUY under Chapter 3 of FTP on free shipping bills as per Para 3.23.8 of HBP -2008 and Para 3.11.8 of the HBP -2009; Circular No. 26/2009 -Cus., dated 30 -9 -2009 states that intention to avail the benefit of reward scheme is required to be declared at the time of export, due to non -declaring the said intention the goods were not examined in terms of Circular 1/2009 -Cus., dated 13 -1 -2009 wherein examination norms in respect of export goods under reward scheme was provided, according to which the exporter shall state the intention to claim benefits under chapter 3 of FTP by declaring on the free shipping bills, their intention to claim the benefits as admissible under chapter 3 of FTP. In the said circular examination norms is also prescribed and in the present case being the value of the case less than 20 lakhs, hence appropriate norms of 2%; had the exporter declared the intention of scheme of VKGUY, the goods would have undergone 2% examination. The request for amendment cannot be allowed as per instruction contained in both the Circular 36/2010, dated 23 -9 -2010 and Circular No. 4/2004, dated 26 -1 -2004; requested amendment would tantamount to conversion of subject Free Shipping Bill into EP/Reward Scheme Shipping Bills. The instant case cannot be covered under Section 149 of Customs Act, 1962, as the intention of the exporter to claim the benefits under chapter 3 of FTP is not found to be existed and there is no mention of the scheme of VKGUY in the shipping bills. Aggrieved with the order, the appellant approached the Commissioner (Appeals) where the Commissioner (Appeals) upheld order of the original authority and dismissed the appeal of the appellant. Therefore, the appellant is before me. Shri. Rajiv Gupta, ld. Consultant for the appellant made the following submissions.

(2.) ON the other hand, Shri D.D. Joshi, Asst. Commissioner (AR) reiterates the impugned order and submits that declaration of intention of the appellant for claiming VKGUY scheme on the shipping bill is mandatory requirement and seeking amendment in the shipping bill is not covered under Section 149 of Customs Act, 1962. He submits that the Circular No. 26/2009 -Cus., dated 13 -9 -2009 sub -para (vi) of para VI mandates that intent to claim benefit under chapter 3 of FTP on free shipping bill is compulsory.

(3.) THE issue in question to be decided by me is whether amendment by a declaration of intent of claiming VKGUY scheme can be allowed on the free shipping bill under which goods already have been exported. The VKGUY scheme was in operation during the policy period 2004 -09 when the export has taken place. As regard the export under VKGUY scheme, there was no specific shipping bill was prescribed, therefore the export was allowed under free shipping bill only. It is observed that even in case of free shipping bill VKGUY scheme was allowed even without any declaration. The DGFT and also the Revenue subsequently felt the need of declaration of Chapter 3 of FTP even in respect of VKGUY on the free shipping bill and accordingly made the amendment in the HBP and Customs also issued circular to this effect. In the present case the goods were exported during Aug. 2009 and Sep. 2009, whereas all these clarifications and amendments regarding declaration of intent of the export claiming VKGUY scheme was brought to the effect in Sep. 2009 and subsequently Nov. 2009 vide Circular No. 26/2009 -Cus., dated 13 -9 -2009, 36/2010 -Cus., dated 23 -9 -2010, DGFT Policy Circular No. 32(RE -2010) 2009 -14, dated 3 -6 -2011, Public Notice No. 53(RE -2010)/2009 -14, dated 3 -6 -2011, whereas the export of the appellant were taken place on Aug. 2009 and Sep. 2009. In these circumstances, non -declaration by the appellant of their intent to avail VKGUY scheme on the shipping bill is bona fide and amendment to that effect in the shipping bill is covered under the provision of Section 149 of Customs Act, 1962, which is reproduced below: - -