Page 149 - ELT_1st July 2020_Vol 373_Part 1

2020 ] GOKUL OVERSEAS v. UNION OF INDIA 59

framed thereunder and the export import policy have the force of law.
Handbook of Procedures and the amendments carried out thereto are per se
not declaration of law but only impose conditions which are to be fulfilled
and otherwise conform to the requirements of law. Without making a
deeper analysis of these legal provisions, the facts of this case reveal that
the export goods are essentially agricultural produce and continued to be
covered as an item eligible for benefit. At the time, just prior to 1-4-2008, the
goods had been exported as free shipping bills. The exporter/appellant’s
fault here is that it did not file the requisite declaration. In all other respects,
i.e. as to whether they conform to the description in the shipping docu-
ments and the value, etc. continues to be ascertainable because the con-
cerned bills, invoices and other shipping documents are available with the
customs authorities.
8. Having regard to these, we are of the opinion that in the peculiar cir-
cumstances of the case, the omission to file the declaration of the kind we
are concerned with, when all other relative materials are present was not vi-
tal to the appellant’s case. The material which did and does exist is substan-
tial; the appellant should, therefore, be permitted to amend its shipping bill.
The respondents are directed to give effect to this order within the next two
months. The appeal is consequently allowed.”
36. In the opinion of this Court, the above decision would be squarely
applicable to the facts of the present case. As is evident from the letter dated 7/8-
9-2019 (Annexure-O to the petition), the Deputy Commissioner of Customs,
Kandla SEZ, Gandhidham (Office of the Development Commissioner, Kandla
Special Economic Zone) has, in the context of the petitioner’s request for
amendment in the shipping bills to incorporate ‘declaration of intent’, furnished
comments for specific recommendations on the issue to respondent No. 6 - Assis-
tant Commissioner (Exports), Office of the Commissioner of Customs, Kandla,
stating that the petitioner is filing regularly its claim for similar goods under
MEIS for later periods and it appears that the petitioner is, otherwise, eligible for
the said scheme. Therefore, in the light of the provisions of Section 149 of the Act
read with the provisions of Circular No. 36/2010-Customs, dated 23-9-2010 and
Notification No. 40/2012-(N.T.), dated 2-5-2012, the decision regarding conver-
sion may be taken on the basis of documentary evidence which was in existence
at the time when the goods were exported, subject to the satisfaction of the com-
petent authority.
37. Thus, except for the fact that the request for conversion of the free
shipping bill to MEIS shipping bill has been made beyond the time prescribed in
Circular No. 36/2010-Customs, dated 23-9-2010, no other objection has been
raised on behalf of the respondents. In the opinion of this Court, having regard to
the peculiar facts of the present case, the omission to file ‘declaration of intent’
when all other relevant material is available, is not fatal to the petitioner’s case.
As in the case of Kedia (Agencies) Pvt. Ltd. v. Commissioner of Customs (supra), in
the facts of the present case also, in all other respects, that is, as to whether the
goods conform to the description in the shipping documents and the value, etc.
continues to be ascertainable because the concerned bills, invoices and other
shipping documents are available with the Customs authorities. The respondents
are, therefore, not justified in turning down the request to convert the shipping
bills of the petitioner from free to MEIS and thereby depriving the petitioner of
the benefits under the MEIS in respect of exports made under such shipping bills.

EXCISE LAW TIMES  1st July 2020  149