The Delhi High Court dismissed the appeal by the commissioner of customs as no provision in CETA or CEA which is akin to Section 149 of the Income Tax Act, 1961.
The Commissioner of Customs filed an appeal under Section 130 of the Customs Act, 1962 assailing the orders dated 24 February 2020 passed by the Custom, Excise and Service Tax Appellate Tribunal (CESTAT), whereby it allowed the amendment of documents filed with the Commissioner of Customs at the time of export of Gold Jewellery and Gold Medallions, purportedly in exercise of powers under Section 149 of the Act.
M/s M D Overseas, M/s. Gulab Impex Enterprises Limited and M/s. Kanak Export, the respondents filed applications under Section 149 of the Act seeking amendment in their shipping bills filed at the time of export of Gold jewellery and Gold medallions during the period 01 April 2014 to 31 March 2015. It was claimed by Respondents that they are seeking amendment as they had not entered the declaration for a claim of Service Tax Rebate which was required to be made in the electronic shipping bill as per paragraph 2 of the Notification No. 41/2012-Service Tax dated 29 June 2012.
By way of amendment, they wanted to endorse the said declaration on the said shipping bills so that they could claim STR under the relevant notification. It is an admitted case that the respondents also filed all the relevant documents viz. shipping bills, relevant invoices, airway bills, bank realization certificates, etc. along with their applications for amendment as required vide Section 149 of the Act.
The Adjudicating Authority did not allow the amendment application filed by any of the Respondent and dismissed the same holding that amendment can only be allowed based on documentary evidence, which was in existence at the time of export, but the Respondents have not been able to produce any such documentary evidence.
On appeal, the Commissioner of Customs (Appeal) rejected inter alia holding that the respondents had not produced any documentary evidence about receiving, using receipts of services and tax paid on services and so the requirement of Section 149 of the Act was not met. It was further held that the appellants failed to submit relevant information in the prescribed format about the exports made, and therefore, denied the benefit of Paragraph (2) of the Relevant Notification dated 29 June 2012. On second appeal filed by respondents, the CESTAT allowed those appeals vide separate orders
A careful perusal of Section 149 of the Act shows that firstly, it provides no period of limitation for applying amendment of relevant documents to seek rebate or any other benefit. Secondly, it does not provide for any reasons that may enable an exporter to claim amendments in the shipping documents. Thirdly, the proposed amendment in the shipping bills can be allowed by the Proper Officer subject to the only rider that same is based on documentary evidence that must be shown to be in existence at the time the goods were exported.
There is no provision in the Central Excise Tariff Act, 1985 or for that matter in the Central Excise Act, 1944, which is akin to Section 149 of the Act. It was borne out from the record that the respondents in their appeal before the CESTAT had specifically made a categorical assertion in the ground (R) that they had suffered Service Tax on the input services and had annexed relevant details, although the same was not alluded to while passing the impugned order dated 24 February 2020.
The division bench comprising Justice Yashwant Varma and Justice Dharmesh Sharma observed that the counsel for the appellant was all at sea to indicate which document was amiss, or as to which information or declaration was lacking that was not filed along with the shipping bills/orders at the time of making the exports.
“All the relevant documents which could have been filed at the time of exports, were available as it is in original form and format without any change as such and were submitted along with the application for amendment of the shipping bills etc. on 14 March 2017. The respondents specifically stated in the application that no claim would be made by them under Paragraph (3) of the Relevant Notification. Resultantly, there was no reason to hold otherwise and nothing more was required to be done on the part of the respondents. Therefore, we find no legal infirmity, perversity or incorrect approach adopted by the learned CESTAT in passing the impugned orders dated 24 February 2020 thereby allowing the respondents the benefit of STR based on the exports made during the relevant period.”, the Court viewed while dismissing the appeal.
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