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TMI Blog2020 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 will not be applicable in this case. Therefore, the unit has to declare its intent for claiming benefits under the MEIS for exports made prior to 01.06.2015, that is, for the period between 01.04.2015 to 31.05.2015. As per the Foreign Trade Policy/Handbook of Procedure 201520, MEIS benefits were available to SEZ units with effect from 01.04.2015. It emerges that the petitioner is not permitted conversion of the shipping bills from free shipping bills to MEIS shipping bills for the reason that Circular No.36/2010 -Customs dated 23.09.2010 provides that conversion may be allowed provided that request has been made within three months from the date of the Let Export Order. The facts as recorded hereinabove reveal that 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 amending the shipping bills to incorporate declaration of intent , has furnished comments on the issue to the respondent No.6 Assistant Commissioner (Exports), Office of the Commissioner of Customs, Kandla, stating that the petitioner has been regularly filing its claim for simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the Merchandise Exports From India Scheme (MEIS) by the petitioner under five different applications (Annexure -G collectively) and to accept the amendment in shipping bills with a declaration made by letter dated 22.06.2017 (Annexure- J to the petition). The petitioner also prays that the letter dated 11.02.2019 (Annexure -AC to the petition) whereby the request of the petitioner for acceptance of shipping bill for MEIS has been turned down, be quashed and set aside. 2. The facts as appearing in the memorandum of petition are that the petitioner is a partnership firm situated at Kandla Special Economic Zone (KSEZ) and is duly registered with the Service Tax Department. The petitioner firm is inter alia engaged in the manufacturing of derivatives of Castor Oils and clears its final product to export and is also a certified Three Star Export House. 3. The Government of India introduced the Merchandise Exports From India Scheme (hereinafter referred to as the MEIS ) through the Foreign Trade Policy (FTP) 2015 -2020 with effect from 01.04.2015. It seeks to promote export of notified goods manufactured/produced in India. The MEIS is a major export promotion scheme implem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded for a period beyond 31.05.2015 by Public Notice No.47/2015 -20 dated 08.12.2015. Thus, the condition of the declaration has been relaxed from time to time even if it has been treated as a mandatory condition. 8. The petitioner, by its application dated 21.12.2015, applied for the MEIS for the exports made during the period between April 2015 to January 2016 and it came to be granted MEIS Licence No.3719000578 against the exports made from its factory. 9. The petitioner again applied for the MEIS for the exports made during the period from April 2015 to January 2016, under separate applications. The applications came to be partly allowed, whereby twenty five shipping bills for an amount of ₹ 9,10,235/ , were not allowed and were disputed. The petitioner was informed that a reference has been sent to the respondent No.3 DGFT seeking clarification as to whether the shipping bills (Non- EDI) prior to 01.06.2015 were eligible for the MEIS benefits or not in the absence of the Declaration of Intent for claiming the MEIS benefits by a letter dated 03.08.2016 of the Sr. Accounts Officer, Kandla SEZ. The petitioner requested to allow benefits of the scheme and also request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, in the light of the provisions of section 149 of the Act read with the provisions of Circular No.36/2010 -Cus. dated 23.09.2010 and Notification No.40/2012- Customs (N.T.) dated 02.05.2012, the decision regarding conversion 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 competent authority. The petitioner was asked to submit documents, which came to be duly submitted by a letter dated 27.09.2017 and it also declared the intention to claim benefits under the MEIS. Since there was no response from the respondents, the petitioner requested the respondent No.6 Assistant Commissioner of Customs (Exports) to grant personal hearing regarding the issue of amendment in the shipping bills pursuant to the claims under the MEIS. 14. It appears that thereafter, there were communications inter se between different Departments of the respondents as to who was the proper officer to cancel the LEO and to grant amendment in the shipping bills. Thereafter, the petitioner received a communication dated 01.02.2018 addressed by the respondent No.6 Assistant Commissioner of Customs (Exports) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irections to the authority to submit comments, there was no response thereto. 19. Subsequently, by a letter dated 31.10.2018/01.11.2018 of the Joint Development Commissioner addressed to the respondent No.2 Under Secretary, Government of India, it was opined that no procedural relaxation has been prescribed in case of Non- EDI shipping bills. Since there was no communication to the petitioner pursuant to the above referred letter, the petitioner addressed yet another representation to the respondent No.2 Under Secretary, Government of India, vide letter dated 22.01.2019, requesting to allow benefits under the MEIS. By a letter dated 11.02.2019, the petitioner was informed that a detailed report with regard to the MEIS has been sought from the Kandla SEZ authority and that the request of the Unit cannot be considered, as the request had been made beyond three months from the date of the LET export order and hence, the same is time barred in view of the Circular No.36/2010 -Cus. dated 23.09.2010. Being aggrieved, the petitioner has filed the present petition. 20. Mr. Dhaval Shah, learned advocate for the petitioner, submitted that rejection of the request of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments and the concerned authorities have permitted clearance of the goods after examination of all these documents. Therefore, non -declaration of the intent to avail benefits under the MEIS cannot come in the way of the petitioner in claiming such benefits. It was submitted that the intention of the legislature to introduce the scheme is to boost exports and therefore, the respondent authorities are not justified in adopting such a rigid stand. 20.5 It was further submitted that since the MEIS was introduced in the month of April 2015, the petitioner was not familiar with the procedure and therefore, due to mistake, declarations were not made in the shipping bills. However, subsequently, the petitioner was able to establish that it is, even otherwise, eligible to claim benefits under the scheme and, therefore, merely because the petitioner had not mentioned the declaration on the shipping bills, would not be a valid ground to deny the benefits thereof. 20.6 Lastly, it was contended that section 149 of the Act does not provide for any period of limitation for amending the shipping bills. It was submitted that it was on account of the conduct of the respondent authorities in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular, which provides that free shipping bills (shipping bills not filed under any export promotion scheme) are subject to nil examination norms. Conversion of free shipping bills into EP scheme shipping bills (advance authorization, DFIA, DEPB, reward schemes, etc.) should not be allowed. It was submitted that it is in these circumstances that the Declaration of Intent is a prerequisite for claiming the benefit of incentive scheme and is not procedural and that what the petitioner seeks is the waiver of the prerequisite for obtaining the incentive. 21.3 It was submitted that the precondition for filing of Declaration of Intent is applied on the class as a whole to Non- EDI shipping bills and that even otherwise, the petitioner is not entitled to the benefit in respect of some of the shipping bills, as they have been filed beyond the period of limitation. It was submitted that if the intention to avail benefits under the scheme is not declared in the shipping bills, the necessary process required for clearing the goods will be missed out. 21.4 It was, accordingly, urged that the mandate of the Circular dated 23.09.2010 for making application for conversion of shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 3.14 of the Handbook of Procedure, reads as under: 3.14 Procedure for Declaration of Intent on EDI and Non EDI shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e- Commerce : (a) (i) EDI Shipping Bills: Marking/ticking of Y (for Yes) in Reward column of shipping bills against each item, which is mandatory, would be sufficient to declare intent to claim rewards under the scheme. In case the exporter does not intend to claim the benefit of reward under Chapter 3 of FTP exporter shall tick N (for No). Such marking/ticking shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP. (ii) Non- EDI Shipping Bills: In the case of Non- EDI Shipping Bills, Export shipments would need the following declaration on the Shipping Bills in order to be eligible for claiming rewards under MEIS: We intend to claim rewards under Merchandise Exports From India Scheme (MEIS) . Such declaration shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires mandatory declaration of intent from 1.6.2015 onwards. In EDI generated shipping bills, exporters are required to tick mark Y in case they intend to claim benefits under MEIS and N in case they do not intend to claim benefit under MEIS. 3. In light of these circumstances and to address the matter, in exercise of powers conferred under paragraph 1.03 of the Foreign Trade Policy (2015 -2020) read with reference to para 3.14 of Handbook of Procedures of FTP 2015- 20, the Director General of Foreign Trade hereby allows the following procedure to be followed where exports have been made between 1.4.2015 to 31.5.2015, and where the exporter has inadvertently marked N in the reward item box and wishes to seek MEIS benefits: Exporters shall submit physical copies of free shipping bills after electronic filing Of application to RA at the time of submission of application for MEIS rewards in these cases. RA shall grant MEIS rewards after examination of such shipping bills in accordance with other provisions of FTP/HBP. 4. From 01.06.2015, only those shipping bills, which are transmitted by Custom Authorities to DGFT, shall be considered under MEIS. Effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the petitioner applied for the MEIS for the exports made during the period April 2015 to January 2016, under separate applications. The said applications were partly allowed and twenty five shipping bills were disputed. Vide letter dated 03.08.2016, the petitioner was informed by the respondent No.5 Development Commissioner, that since there is no declaration of intent on the shipping bills for claiming benefits under the MEIS, a reference has been sent to the respondent No.3 DGFT for a clarification whether such shipping bills (Non-EDI) prior to 01.06.2015 were eligible for benefits under the MEIS benefits or not. Therefore, till that time, its claim will be kept pending. Thus, the claim was kept pending by the concerned authorities. 30. Vide letter dated 06.06.2017, the petitioner requested the respondent No.4 Commissioner of Customs, Kandla, to allow benefits under the MEIS on the shipping bills in case the declaration of intent was not mentioned on exports made prior to 01.06.2015, whereupon the petitioner was advised/informed to comply with the amendment in the form of conversion of shipping bills from free to MEIS, whereafter, the petitioner applied for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs, 2017 (348) ELT 634 (Del.), on which reliance has been placed by the learned advocate for the petitioner, wherein the question that arose for consideration was: Did the CESTAT fall into error in upholding the denial of the petitioner s claim for amendment of its shipping document under section 149 of the Customs Act. The court held thus: 7. In the present case, the appellant had been consistently dealing with the same goods and exporting them previously for over three years. The pre condition of a declaration along with the relative forms, for grant of benefit was introduced on 1 4 2008 through an amendment to the Handbook of Procedures. It is now settled law that the provisions of the Foreign Trade (Development Regulation) Act, 1992, the rules or regulations 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 essentiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No.36/2010 -Customs dated 23.09.2010, 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. 38. In the light of the above discussion, the petition succeeds and is, accordingly, allowed. The impugned letter dated 11.02.2019 of the respondent No.2, Under Secretary, Government of India, is hereby quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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