2019 (9) TMI 398 - HC - Customs

Advance Authorization Scheme - non-fulfilment of export obligation - supplies made to SEZ units - non-furnishing of bill of export - acceptance of Merchandise Export from India Scheme (MEIS) for issuance of MEIS scrip for the exports - exports made in 2015-16 and 2016-17 - It is the grievance of the Petitioner that after having held that the Petitioner has fulfilled the export obligation, the Additional Director General of Foreign Trade should have allowed the Petitioner s appeal - HELD THAT - In the present case, there is no dispute that Respondent No.3- Additional Director General of Foreign Trade who passed the impugned order was satisfied that the Petitioner has fulfilled the export obligation but he denied the benefit of export obligation to the Petitioner only on the ground of non-furnishing of bill of export. This view taken by the impugned order is contrary to the binding decision of this Court upheld by the Supreme Court. The distinction made in the impugned order is that the decision of the Supreme Court in UNION OF INDIA ORS. ETC. VERSUS LARSEN AND TOURBO LIMITED ETC. 2019 (4) TMI 1717 - SC ORDER is based on the facts of that particular case, ignoring the ratio of the decision of this Court in the case of Larsen Toubro Limited v. Union of India upheld by the Supreme Court that fulfillment of export obligation in respect of supplies made to SEZ can be established by the documents others than the bill of export, if the same is not available. The Petitioner is now entitled to make an application to the Respondent- Director General of Foreign Trade for issuance of MEIS scrip which the Petitioner could not do as it was put on Denied Entity List on 8 June 2018, in respect of exports made during the period 2015-16 and 2016-17. The Petitioner has stated that on-line applications can be made within a period of three year for issuance of MEIS scrip on the basis of exports made. However, as the Petitioner was put on Denied Entity List on 8 June 2018 and continued to be so till 19 August 2019 when the Petitioner s name was deleted. The Petitioner would not now be in a position to file an application for MEIS scrip on-line. This as the system would not accept it. Therefore, Respondent Nos.1 to 4 would accept a hard copy of the Petitioner s application for MEIS scrip, if filed by the Petitioner - petition allowed.

Summary

Issues involved:
Challenge to order under Foreign Trade (Development & Regulation) Act, 1992 regarding export obligation fulfillment, dispute over submission of bill of export, appeal to Additional Director General of Foreign Trade, interpretation of relevant legal provisions and precedents.

Analysis:
The petition challenges an order rejecting the petitioner's claim of fulfilling its export obligation under an Advance Authorization, seeking direction for acceptance of its application for Merchandise Export from India Scheme (MEIS) scrip. The petitioner imported goods under the Authorization and supplied to a Special Economic Zone (SEZ), which was considered a valid discharge of export obligation. However, a deficiency memo was issued for absence of bill of export, leading to a penalty imposition for non-fulfillment. The Additional Director General of Foreign Trade dismissed the appeal, emphasizing the necessity of bill of export despite acknowledging other documents proving export. The petitioner argued that contemporaneous documents should suffice, citing relevant legal precedents. The court found the impugned order erroneous, as it contradicted established principles allowing proof of export through alternative documents. Consequently, the order was set aside, directing the issuance of export obligation discharge certificate and redemption of the Advance Authorization based on submitted documents.

The petitioner's entitlement to apply for MEIS scrip was hindered by being on the Denied Entity List, preventing online application submission. The court directed acceptance of a hard copy application by the authorities for review, without guaranteeing the issuance of the MEIS scrip. The decision highlighted the need for a fair assessment of the application on its merits, leaving the final determination to the authorities. Overall, the court ruled in favor of the petitioner, emphasizing the importance of considering alternative evidences for export fulfillment and ensuring procedural fairness in evaluating entitlements under relevant schemes.