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TMI Blog2021 (2) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Public Notice No.2 of 2015-20 dated 01.04.2015, Sri Lanka was placed in groupC. Although the benefit of MEIS was not made available to the product of vitrified tiles if exported to Sri Lanka. 2.2 It is averred by the petitioner that a Public Notice had been amended on 04.05.2016 being the Public Notice No.6 of 2015-20 and MEIS scheme was extended to the export made to Sri Lanka at the rate of 2% interest. The interest was further amended on 22.09.2016 vide Public Notice No.32 of 2015-20 and the rate of percentage was enhanced to 3%. According to the petitioner, both the amendments of 04.05.2016 & 22.09.2016 in Public Notices did not come to his knowledge. However, he had exported various consignments to Sri Lanka from the year 2015 to 2020, but on account of his lack of knowledge, he did not claim any benefit of MEIS scheme. On his being aware of such Public Notices, he made a request to the concerned officer to allow him to amend the shipping bills under the provisions of Section 149 of the Customs Act, 1962; however, such request was not acceded to and the rejection came by referring to some Public Notices. 2.3 It is averred by the petitioner that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FTP' for short) 2015-20 for Electronic Data Interchange ('EDI' for short) has been simplified. The marking of the tick done in pursuance of the earlier Public Notice No.47 dated 08.12.2015 is to be treated as declaration of intent in case of EDI shipping bills. It is, therefore, contended that the marking to the tick in appropriate box since was mandatory even in EDI shipping bills, it is clear that from 30.09.2015, once the marking is mentioned by the exporter, the same is to be treated final and no amendment can be entertained. So far as section 149 of the Customs Act, 1962 is concerned, it is contended that the amendment can be made on the strength of the documentary evidence which is in existence at the time of exports. In the instant case, there are 73 shipping bills where exporters have mentioned in the area as "N" (NO) in the column of reward and therefore, it cannot be now made available the benefits. It is further contended that nearly a year's time has lapsed and therefore also, the petition does not deserve any entertainment. 4. Affidavitinrejoinder has been filed by the respondent wherein the emphasis has been that in complete disregard to the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the scheme itself can be transferred for the payment of number of duties and taxes. As can be gathered from material which has been placed on the record is that Sri Lanka was placed in GroupC in the Public Notice No.2 of 2015 dated 01.04.2015. In Gazette of India, the Ministry of Commerce and Industry, Department of Commerce provided in exercise of the powers conferred under para 2.04 of the FTP 2015-20, the schedule of country groups and the code wise list of product with reward rates under Appendix 3B as pointed out to us that Sri Lanka is not one of those country. It is not in dispute that by way of 73 shipping bills, export has been carried out by the petitionerexporter and he has substantiated the same by way of the documentary evidences, which had happened from 12.05.2016 to 05.01.2017. The Public Notice had been amended firstly on 04.05.2016 and thereafter, on 22.09.2016 whereby Sri Lanka was included and export to Sri Lanka has also been covered under the scheme of MEIS at the rate of 2% and 3% respectively. 7.1 Reference also needs to be made at this stage of the Public Notices No.40/1520 dated 09.10.2015 and 47/1520 dated 08.12.2015. This refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be transmitted by Central Board of Excise and Customs to DGFT. 8. Public Notice No.09/2015-20 dated 16.05.2016 amends paragraph No.3.14 in the following manner: "Amended paragraph No.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 items, 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 shipment 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Policy and the contention raised was that after the introduction of electronic process in shipping bills, the amendments under Section 149 of the Customs Act,1962 cannot be done in the EDI system as no notification can be done in the system after the Export Order' is given. It is stated, however, that the 3rd respondent can issue a 'No Objection Certificate' to the petitioner for availing the MEIS benefit and the 4th respondent before Madras High Court was the authority to relax the policy which needed to consider the said certificate to serve the petitioner's purpose. The Court directed the 3rd respondent to issue necessary 'No Objection Certificate' to the petitioner which the petitioner was directed to produce to the 4th respondent and seek the benefit from him which was directed to consider such claim and pass orders thereon expeditiously within a period of three months. 10.1 This was also referred to in case of Pasha International vs. Commissioner of Customs, Tuticorin (supra) where the writ petitioner was manufacturer and exporter of "Bags and madeups. It intended to claim benefit under MEIS and while filling up the shipping bills, the Writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re for 'Declaration of Intent' on EDI and Non-EDI shipping bills for claiming benefits under the MEIS, including export of goods through courier or foreign post offices using eCommerce. Subclause (I) of clause (a) thereof provides the procedure for 'declaration of intent' in case of EDI shipping bills; and subclause (ii) of clause (b) thereof provides the procedure for 'declaration of intent' on any EDI shipping bills. Para 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 eCommerce: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0), all exporters while filling export shipments under all categories of the shipping bills are required to declare the following intent to claim benefit under MEIS: "We intend to claim rewards under Merchandise Exports from India Scheme (MEIS)". Declaration of intent is mandatory with effect from June 1, 2015. CBEC has also issued a circular no. 14/2015 dated April 20, 2015, which 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the petitioner is that since the shipping bills are free shipping bills, wherein no 'declaration of intent' has been made, the petitioner is required to get the shipping bills amended by incorporating the following 'declaration of intent': "We intend to claim rewards under Merchandise Exports From India Scheme (MEIS)". 29. In this 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 - Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been rejected is for non compliance of condition (a) of paragraph 3 of the said circular, namely that the application has been filed beyond a period of three months from the date of filing the Let Export Order. 35. At this juncture, it may be apposite to refer to the decision of the Delhi High Court in Kedia (Agencies) Pvt. Ltd. v. Commissioner 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 precondition of a declaration along with the relative forms, for grant of benefit was introduced on 142008 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 37. Thus, except for the fact that the request for conversion of the free shipping bill to MEIS shipping bill has been made beyond the time prescribed in Circular 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the conversion has been permitted by the Court, whereas in the instant case, it is only the question of the EDI bills where inadvertently instead of 'Yes' the ticking was on 'N'. As provided in case of Pasha International vs. Commissioner of Customs (supra) by Madras High Court, this has to be construed as pure and simple mistake on the part of the exporter, when otherwise the respondent has not questioned any of the shipping bills and it is only because the declaration of intent on the said shipping bills for claiming the benefits under the MEIS, the subsequent claim made by him on the EDI is questioned on the ground that Section 149 of the Customs Act would not be applicable. 15. We are of the opinion that the decisions which have been discussed hereinabove coupled with the very object of the MEIS would not allow us to endorse to the stand taken by the respondent authority, even if, the subsequent notices, which have been relied upon for denying the benefits by virtue of the communication dated 10.06.2019 do not prescribe the time limit, the reasonable time could be regarded as this request is made at the end of one year. 16. We also agree with the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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