KIRAN PONDY CHEMS LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be summarily disposed of. Accordingly, after dismissing the present application, we proceed to deal with the appeal.

(2.) THE appellants are manufacturers and exporters of Sodium Silicate. They imported 1,000 MTs of Soda Ash (one of the raw materials) under a quantity -based Advance Licence issued from the Directorate General of Foreign Trade (DGFT, for short). They exported their final product (Sodium Silicate) towards discharge of export obligation in relation to the imported material. These exports were made under numerous Shipping Bills. 5 of these bills were filed after 18.12.2003, the date of expiry of the original validity period of the above licence. The licence was subsequently renewed by DGFT upto 18.05.2004. The said 5 Shipping Bills, which were filed during the interregnum, were "Free Shipping Bills", which were the proper export documents to be filed in respect of normal exports, i.e., exports not covered by special schemes. But these Shipping Bills were accompanied by ARE -1s (documents, authenticated by the Central Excise Range Superintendent, evidencing removal of excisable goods for export) which carried certification by Central Excise Range Superintendent in Part 'A' and certification by Customs officer in Part "B". It further appears from the records that the export obligation in respect of the imported raw material was fully discharged by the party within 18.05.2004 (date of expiry of the extended validity period). After the export of goods covered by the above 5 Shipping Bills, the exporter applied to the Commissioner of Customs for conversion of "Free Shipping Bills" to "DEEC Scheme Shipping Bills". This request was turned down by the Commissioner as per letter dated 13.10.2004 addressed to the exporter, wherein ld. Commissioner maintained that he had no power to allow conversion of the Shipping Bills and further that such conversion was an administrative function. When the party persisted with their request and insisted on a speaking order, the Assistant Commissioner of Customs (Exports) in the Office of Commissioner issued a one -line letter dated 04.03.2005 reading thus: Kindly refer to your letter -dated 06.12.2004 on the above subject. The appropriate authority as per the Board's Circular No. 4/2004 dated 16.01.2004 has not considered your request for conversion from free Shipping bill into DEEC Scheme. This is for your information. The present appeal has been filed by the exporter, aggrieved by the above proceedings.

(3.) WE have given careful consideration to the submissions. The grievance of the appellants is against refusal of conversion of "Free" Shipping Bills to "Advance Licence" Shipping Bills ("DEEC" Shipping Bills). The request for such conversion was made to the Commissioner of Customs, but its result was unfavourable. A further representation was made to the Commissioner and its outcome was communicated by the Assistant Commissioner of Customs (Exports) in the Commissioner's office. The AC's letter says that the appropriate authority did not consider the request for conversion of "free" SBs to "DEEC" SBs. It indicates that Board's Circular No. 4/2004 dated 16.01.2004 prohibited such conversion. The appellants' grievance is essentially against the Commissioner's stand as communicated to them. What was communicated to the party was the Commissioner's decision not to permit conversion of the Shipping Bills and the same affected the party adversely. Hence we overrule ld. SDR's objection as to maintainability of the appeal. Neither side has referred to a vital provision of the Customs Act, which is Section 149 which reads as under: