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TMI Blog2019 (3) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd respondent wanted to rely upon the order- in -original dated 20/11/2018, the least the 2nd respondent should have done is to give an opportunity to the petitioner to deal with the order- in -original dated 20/11/2018 for considering its effect/impact on the proceedings before the 2nd respondent. The matter is remitted back to the 2nd respondent for a fresh decision on merits and in accordance with law. - WRIT PETITION ST NO. 1392 OF 2019 - - - Dated:- 15-3-2019 - S.C. DHARMADHIKARI M.S. KARNIK, JJ. Dr. Sujay Kantawala a/w. Poorva Patil a/w Brijesh Pathak for petitioner. Mr. Pradeep Jetly, Senior Counsel a/w. Mr. Yashodeep Deshmukh I/b. G. Asnani for respondent Nos.1 2. JUDGMENT (PER M.S.KARNIK, J.): Heard. 2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 3. By this Petition filed under Article 226 of the Constitution of India, the petitioner challenges the order dated 3rd December, 2018 passed by the 2nd respondent Development Commissioner SEEPZ Special Economic Zone, Andheri (E), Mumbai denying the petitioner benefit at 5% under the Merchandise Exports from India Scheme ('MEIS' for short). It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was fixed before the 3rd respondent on 3/5/2018. The petitioner filed reply to the show cause notice on 22/5/2018. 6. By various representations dated 13/3/2018, 5/4/2018, 29/5/2018 and 25/6/2018, made to the 2 nd respondent, the petitioner requested him to release the benefit under MEIS since the clarification from the jurisdictional CGST office was already on record and as such withholding of the benefit available to the petitioner is illegal. The petitioner approached this Court by filing a Petition since there was no decision on the representation. 7. Writ Petition No. 8094 of 2018 filed by the petitioner in this Court was disposed of on 16/8/2018 directing the 2nd respondent to consider the Petition and its annexures as a representation of the petitioner and to pass a speaking order. 8. The 2nd respondent heard the petitioner as well as 3rd and 4th respondents on 25th September, 2018 and raised queries to the officers of 3rd and 4th respondents. A detailed reply was filed by the respondents on 28/9/2018. The office of the 4th respondent filed a detailed reply before the 2nd respondent on 27/9/2018. 9. The 2nd respondent passed the impugned order on 3rd December, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent, according to learned counsel is not in consonance with law and completely contrary to the principles of natural justice. 13. On the other hand, learned Counsel Shri Jetly supported the order passed by the 2nd respondent. It is his submission that once the issue of classification has been finally decided and settled vide the order in original dated 20/11/2018 by the Customs authorities which is empowered to decide the issue of classification under Customs Tariff Act, if based on this classification, the issue of incentive under MEIS benefits is decided, it cannot be said that there is any infirmity in the view taken. 14. According to Shri Jetly, the Customs authority is a proper authority to decide the classification under the Customs Tariff Act and the said power is not vested with the 2 nd respondent. Therefore, once the issue of classification is finally settled by the competent Customs authority, issue of benefit under MEIS Scheme will also follow the order on classification. In the submission of Shri Jetly, there is no error whatsoever in the approach of the 2nd respondent. 15. We have heard learned counsel for the parties. With the assistance of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in original dated 20/11/2018 is pending in an appeal filed by the petitioner before the CESTAT. 20. Insofar as the proceedings before the 2nd respondent requesting to release the benefit under MEIS is concerned, it is the contention of the petitioner that the jurisdictional CGST office and Central Excise Division has already clarified that the goods exported by the petitioner was classifiable under the tariff heading 5607 9090. Thus, it is the contention of the petitioner that the proceedings before the 2nd respondent are distinct and independent proceedings for the purpose of classification of the goods exported vis a vis proceedings before the 3rd respondent. Thus it is the case of the petitioner that the classification of the goods under Customs Tariff and Central Excise Tariff for the benefit of MEIS is required to be done independently without being influenced by the order in original passed by the respondent No.3. 21. We find that the 2nd respondent relying upon the order in original dated 20/11/2018 passed by the 3 rd respondent denied the beneift of 5% under MEIS. The order inoriginal dated 20/11/2018 is the only basis for denying the claim of the petitioner. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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