2018 (8) TMI 1243 - HC - Customs

Merchandise Exports From India Scheme (MEIS) - independent application of mind - Held that - There is no independent application of mind for this second respondent has been forwarding to the petitioner the letters from the Customs. The petitioner says that there is no linkage with what is alleged to be a wrongful and illegal act and subject matter of an investigation and thereafter, the show cause by the Customs. The petitioner says that a specific order should be passed after hearing the petitioner so that the petitioner can challenge it by urging that there is no mandate to withhold, suspend or cancel the benefits merely because of an investigation or a pending show cause notice. The jurisdictional Central GST and Central Excise Officers cannot issue a command of the nature relied upon by this authority, according to the petitioner to withhold the benefits. Petition disposed off.

Summary

Issues:
1. Arbitrary and illegal command issued by respondent nos. 3 and 4 to the Development Commissioner under Foreign Trade (Development and Regulation) Act, 1992 and Special Economic Act, 2005.
2. Communication impacting petitioner's benefits under Merchandise Exports From India Scheme (MEIS) based on Customs investigation.
3. Lack of independent application of mind in communication from Assistant Commissioner of Central GST and Central Excise, affecting petitioner's benefits.
4. Request for a specific order after hearing the petitioner to challenge the withholding of benefits during investigation or pending show cause notice.
5. Jurisdictional authority's power to withhold, suspend, or cancel benefits without proper mandate.

Analysis:

1. The petitioner challenges an arbitrary and illegal command issued by respondent nos. 3 and 4 to the Development Commissioner, functioning under the Foreign Trade (Development and Regulation) Act, 1992, and the Special Economic Act, 2005. The petitioner contests a communication impacting their benefits under the MEIS scheme, highlighting a lack of linkage between the alleged wrongful act and the ongoing investigation by Customs, leading to the withholding of benefits.

2. The petitioner asserts that the communication from the Assistant Commissioner of Central GST and Central Excise, Division-IV, Palghar Commissionerate lacks an independent application of mind. They argue that one-sided communication from a distinct authority has unjustly resulted in the withdrawal of their exporter benefits under the MEIS scheme. The petitioner emphasizes the need for a fair process and a specific order after hearing them to challenge the withholding of benefits during investigations or pending show cause notices.

3. Representations made by the petitioner in November and December 2017 have been submitted as evidence. The petitioner insists on the requirement for a proper order to be passed after due consideration and hearing, contending that jurisdictional Central GST and Central Excise Officers do not possess the authority to issue commands like the one affecting their benefits. The petitioner seeks a just resolution and emphasizes the importance of due process in such matters.

4. The High Court directs the second respondent to treat the petition and its annexures as a representation by the petitioner. The court orders the second respondent to pass a speaking order after hearing the petitioner promptly, within four weeks from the receipt of the court's order. The court disposes of the writ petition with the provided directions, ensuring that all contentions remain open for further consideration and clarification.

5. In conclusion, the judgment emphasizes the importance of a fair and transparent process in dealing with issues related to the withholding, suspension, or cancellation of benefits under schemes like the MEIS. The court's directive to the second respondent underscores the significance of due process and the right to be heard, ensuring a just resolution in line with legal principles and procedural fairness.