NUCLEUS SATELLITE Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal filed by M/s. Nucleus Satellite Communications Pvt. Ltd., is directed against a communication dated 28/06/05 of the Assistant Commissioner of Customs (Exports), informing them that the appropriate authority as per Board's Circular No. 4/04 dated 16/01/04 had rejected their request for conversion of free shipping bill into DEPB shipping bill. The appellants had exported 720 dish antennae vide shipping Bill No. 1735661 dated 31.12.2003 to UAE. Though the appellants had made several exports (25 containers per annum), by mistake they failed to indicate that the impugned exports had been made under the DEPB scheme. Their request for conversion of the free shipping bill into DEPB shipping bill had been rejected in terms of Circular No. 4/04.

(2.) THE Ld. Counsel for the appellants submits that a minor omission should not disentitle them to legitimate export incentive due to them as per the policy of the Government. The conversion thitherto allowed was stopped with effect from 16/01/04 on the ground of difficulties with the advent of online assessment by the department as per the Circular. It is claimed that a legitimate entitlement granted by the Government should not be denied on such a ground. He submits that in terms of Section 149 of the Customs Act, the exporter is entitled to amend the subject shipping bill, subject to the conditions prescribed in the proviso to the said Section. The appellants had made the export as per the procedure prescribed including endorsement of examination of the export cargo by the jurisdictional Central Excise Superintendent. The appellant was prepared to satisfy the departmental officers regarding the entitlement of the subject export to be made under the DEPB scheme. The subject export had taken place during the currency of Circular No. 6/03 dated 28/01/03 and the appellants were in a position to satisfy the conditions as per the said circular for the conversion requested for. He also cited this Tribunal's order in Kiran Pondy Chems Ltd., v. CC, Chennai , where in this Tribunal had observed that by denying the conversion of free shipping bill into advance licence shipping bill, the CBEC had overlooked the provisions of Section 149 of the Customs Act. It is also submitted that the conversion sought was denied without giving the appellants an opportunity to satisfy the authorities whether the impugned exports could be treated as the DEPB export in view of the documents such as ARE -2 covering the consignment.

(3.) THE Ld. JDR submits that the relevant Circular No. 4/04 dated 16/01/04 does not allow conversion of free shipping bills into DEPB shipping bills. He also submits that in case the request for amending the shipping bills was allowed, the same should be subject to the condition that no documentary evidence which was not in existence at the time of impugned shipment would be used in support of such conversion.