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TMI Blog2020 (3) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... for cases where the exporters, even bonafide, are not vigilant or are lax in compliance with the mandatory conditions. The onus cannot be shifted to the Authorities in such cases to retrospectively determine if the petitioner had otherwise complied with all conditions of Advance Authorization. Petition dismissed. - W.P.(C) 6045/2016 - - - Dated:- 5-3-2020 - MR. NAVIN CHAWLA J. Petitioner Through: Mr. Karan Sachdev Mr. Kunal Kapoor, Advs. Respondents Through: Mr. Akshay Makhija, CGSC with Ms. Kriti Awasthi, Adv. 1. This petition has been filed by the petitioner praying for a Writ of Mandamus directing the respondent no. 1 to condone the procedural lapse of supplying the goods to the SEZ units only under ARE-1 without Bills of Exports with respect to its Advance Authorization No. 0710063364 dated 02.03.2009 as also for issuance of Redemption Certificate to the petitioner with respect to the said Advance Authorization. 2. The facts in brief are that the petitioner was issued the Advance Authorization by the respondent no. 2 on 02.03.2009. The petitioner claims to have supplied the finished goods, that is corrugated boxes, to Nokia Semens and its units in SEZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the Bank Realization Certificate, has produced sufficient proof to show its entitlement to the fulfillment of exports obligation under the Advance Authorization and therefore, was entitled to the issuance of the EODC. He places reliance on the judgment of the Bombay High Court in Larsen Toubro Limited vs. Union of India, 2018 (360) ELT 289 (Bom.), to submit that in a similar circumstance, the High Court had held that where the ARE-1 form had been supplied, it was only a technical obligation of the said form not mentioning the Advance Authorization Number in the initial copies on which the claim of the petitioner herein had been rejected, and that the PRC should have accepted the explanation given by the petitioner therein instead of penalizing the petitioner therein for such procedural lapse. 5. The learned counsel for the petitioner further places reliance on the Circular dated 11.07.2012 issued by the DGFT, granting relaxation under Para 2.5 of the Foreign Trade Policy condoning procedural lapse of non-mention of EPCG licence number and date on the shipping bills. He submits that similar lapse of the petitioner of mentioning the Advance Authorization number and date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Advance Authorization. He further relies upon the judgment of this Court in Holoflex Limited and Anr. vs. Union of India and Ors, 2019 (2) TMI 1576, which distinguished the judgment of the Bombay High Court in Larsen Toubro Limited vs. Union of India, 2018 (360) ELT 289 (Bom.), and observed that filing of Bills of Exports is not a mere formality but serves as a valuable check for ensuring that the goods deemed to have been exported are in fact received by the SEZ Unit and are accounted as Deemed Exports. 10. I have considered the submissions made by the learned counsels for the parties. 11. To answer the submissions made by the respective counsels for the parties, certain provisions of Foreign Trade Policy, Handbook of Procedure and the SEZ Rules, 2006 need to be considered. 12. Paragraph 4.13 of the Foreign Trade Policy, 2004-2009, deals with Advance Authorization Scheme and provides that an Advance Authorization is issued to allow Duty Free Import of input duly and physically incorporated in export directed (making normal allowance for wastage). Such Advance Authorization can be issued either to manufacturer exporters or merchant exporters tied to support m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverse impact on trade or in public interest, in consultation with inter-alia the PRC. 18. Rule 30 of the SEZ Rules further prescribes the procedure for procurement from the Domestic Tariff Area by SEZ units. Rule 30(3) specifically provides that where the goods are procured by the Unit in the SEZ under the claim of export entitlement, the same shall be allowed admission into the SEZ on basis of ARE-1 and a Bill of Export filed by the supplier. In fact, the Proviso to Rule 30 (3) of the Rules further prescribes that if the goods arrive before a Bill of Export has been filed and assessed, the same shall be kept in an area designated for same purpose by the Specified Officer and shall be released to the Unit only after completion of the assessment of Bill of Export. Rule 30(7) provides for examination of the goods alongwith documents, that inter-alia include ARE-1 and Bill of Export, where goods are being procured under claim of an export entitlement. Rule 30(9) further provides that a copy of Bill of Export and ARE-1 with an endorsement of the Authorized Officer shall be treated as proof of export. 19. Rule 30 of the Rules, so far as is relevant to the controversy in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the ARE-1 Forms that were submitted with the Excise Department at the time of supplies to the SEZ Unit did not bear the endorsement of the Advance Authorization Number or its date. It also did not specify the quantity of input used by the petitioner in the goods that was so supplied. It is only when the PRC demanded submission of original ARE-1, that the petitioner submitted copies of the ARE-1 with the Advance Authorization Number and its date stamped by itself on such ARE-1. 21. Besides, petitioner s statement of having worked and manufactured boxes for the past 39 years further weakens his claim in the petition. There is no explanation as to why the petitioner supplied goods only under cover of ARE-1 and not with Bill of Export except for it being an inadvertent mistake. A market player in business for this long would be expected to comply with formalities and file all relevant documents timely. 22. As is evident from the reading of the Paragraph 2.5 of the FTP, exemption from following policy/procedure can be granted only in cases of genuine hardship or adverse impact on trade or in public interest. In my opinion, it is not applicable for cases where the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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