9911796707
TMI Blog2021 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondent No. 2 to issue such directions / orders to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise Exports from India Scheme to the petitioner; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondents to issue such directions to the Respondents to pass such directions to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise Exports from India Scheme to the petitioner; (c) For in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claiming reward under MEIS in respect of various shipping bills have also been rejected on the ground of absence of 'declaration of intent' on the shipping bills. 3.7. Petitioner filed representation dated 17.10.2017 before respondent No.2 and submitted a list of shipping bills on which benefit of MEIS was denied to the petitioner. Petitioner asserted that it was entitled to the reward (duty credit scrips) under MEIS and highlighted several difficulties in claiming the rewards such as:- (i) in certain specified cases (shipping bills) the DGFT portal showed that benefit under MEIS was claimed by the petitioner; (ii) in some cases there was failure to link Electronic Bank Realization Certificate (EBRC) to the shipping bills which was issued by the banks to the exporter for the purpose of claiming benefits under the scheme; (iii) in some case using the E-BRC platform, banks were electronically transmitting foreign exchange realization to the DGFT server directly; and in view thereof, petitioner was denied the benefit under the scheme. 3.8. By order dated 10.05.2018 respondent No. 4 rejected the petitioner's application for amending one such shipping bill No. 4013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the declartion of intent was not stated or mentioned in the application forms which has led to denial of benefit to the petitioner. He submitted that due to a procedural and inadvertently committed mistake of not affirmatively stating "Y" (for Yes) in the declaration of intent column for claiming reward under MEIS, petitioner has been denied the benefit. He submitted that petitioner committed an inadvertent and bonafide error while filing the application forms for claiming benefit under Chapter 3 of FTP, though the petitioner was entitled for the benefit having completed its export obligations. 5.1. He submitted that clause 3.14 of the FTP prescribes the procedure for declaration of intent of EDI and Non-EDI shipping bills for claiming reward under MEIS; in doing so in cases where exports are made through EDI port, the exporter is required to mark / tick "Y" (for Yes) in the reward column of shipping bills against each item for claiming reward under the scheme; whereas in cases where exports are made through Non-EDI port, the exporter is required to specifically declare on the shipping bills "We intend to claim reward under MEIS" in order to claim rewards under MEIS. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to manually carry out corrections in the shipping bills in the case of Non-EDI bills and the respondents can issue the necessary No-Objection Certificate to such party in the case of EDI bills for seeking the benefit under the scheme if such party has inadvertently committed a mistake while filing and uploading the shipping bills on the DGFT portal and not claimed MEIS benefit :- (i) Pasha International Vs. Commissioner of Customs, Tuticorn 2019 (365) E.L.T. 669 (Mad.); (ii) M/s. Global Calcium Pvt Ltd Vs. Asst. Commissioner of Customs & Ors. 2019-TIOL-1259-SC-MAD-CUS; (iii) M/s. Greenglobe Exports India P Ltd Vs. Asst. Commission of Customs & Ors. 2018-TIOL-94-SC-MAD-CUS; (iv) M/s. N C John and Sons Pvt Ltd Vs. Commissioner of Customs. 2019-TIOL-3536-CESTAT-BANG; (v) Anu Cashews Vs. Commissioner of Customs 2019-TIOL-2809-HC-KERALA-CUS. 6. PER CONTRA, Mr. Jetly, learned senior counsel appearing for the respondents has at the outset drawn our attention to the reliefs claimed by the petitioner in the prayer clause i.e paragraph 14 of the petition. He submitted that the reliefs prayed for by the petitioner are not specific but vague and insufficient and as such, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew the same in accordance with the provisions of FT (D&R) Act, Rules made thereunder and FTP; in line with the procedural eligibility condition petitioner was not eligible for MEIS benefit as declaration of intent on shipping bills is not merely a procedural requirement but a substantive requirement; petitioner is in the business of import and export since a long time and the provisions for declaration of intent on the shipping bills was available in the public domain since 01.04.2015; petitioner cannot claim ignorance of such an essential policy which is substantive in nature. Therefore, considering the procedural requirement of the scheme the present petition may be rejected. 7. Mr. Raichandani in his rejoinder has referred to a decision of the Supreme Court in the case of Mangalore Chemicals & Fertilizers Ltd Vs. Deputy Commissioner 2002-TIOL-234-SC-CX, more specifically to paragraph No. 11 to contend that provisions of a statute which are of substantive character are required to be distinguished from those which are merely procedural and technical in nature. He asserted that once the petitioner had fulfilled the eligibility conditions for reward, even if there was a technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(2)(a)(ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid." (Emphasis supplied ) Such is not the scope or intendment of the provisions concerned here. The main exemption is under the 1969 notification. The subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner for denial of such benefit; the intention of the legislature under the scheme is to grant reward / benefit; and therefore any procedural irregularity or mistake committed by the petitioner cannot be held against the petitioner for denial of benefit. 8. Submissions made by the respective counsel have received the due consideration of the Court. Materials on record have also been perused. 9. Before we proceed to adjudicate the issue it would be beneficial to refer to the Foreign Trade Policy (01.04.2015 to 31.03.2020) [updated as on 05.12.2017] with which we are concerned with in the present case. FTP-2015-20 was launched on 01.04.2015 and introduced a slew of measures by providing a framework for increasing exports of goods and services, generation of employment and increasing value addition, in keeping with the 'Make in India' vision. The Policy was far reaching in nature and incorporated various export friendly innovations and simplifications. These included simplifications & merger of reward schemes, introducing new schemes for promotion of merchandise and services exports, incentivising e-commerce exports, encouraging procurement of capital goods from indigenous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Rs. 5,00,000 per consignment then MEIS reward would be calculated on the basis of FOB value of Rs. 5,00,0000 only. 3.06 Ineligible categories under MEIS The following exports categories /sectors shall be ineligible for Duty Credit Scrip entitlement under MEIS (i) Supplies made from DTA units to SEZ units (ii) Export of imported goods covered under paragraph 2.46 of FTP; (iii) Exports through trans-shipment, meaning thereby exports that are originating in third country but transshipped through India; (iv) Deemed Exports; (v) SEZ/ EOU /EHTP/ BTP /FTWZ products exported through DTA units; (vi) Export products which are subject to Minimum export price or export duty. (vii) Exports made by units in FTWZ" 9.2. Public Notice No. 47/2015-20 dated 08.12.2015 issued by the Directorate General of Foreign Trade sets out the procedure for claiming reward under MEIS and is relevant for the present case and reads thus:- "PUBLIC NOTICE No.47/2015-20 Dated: 8th December, 2015 Subject: Declaration of intent under Merchandise Exports from India Scheme (MEIS)-reg. DGFT by Public Notice No. 40 dated 09th October 2015, had prescribed a procedure to be followed for claiming rew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Y' has not been marked and 'N' has been ticked inadvertently in the 'reward item box' while filing shipping bills in Customs for exports made between 01.06.2015 to 30.09.2015, shall be transmitted by CBEC to DGFT. (Anup Wadhawan) Director General of Foreign Trade Email: [email protected] (Issued from File No. 01/61/180/179/AM16/PC-3" 9.3. Public Notice No. 09/2015-20 dated 16.05.2016 is also relevant and it has further simplified the procedure in the case of EDI shipping bills in respect of claiming reward under MEIS and reads thus:- "PUBLIC NOTICE No. 09/2015-20 Dated: 16th May, 2016 Subject: Marking of Y in the EDI generated Shipping Bills by Exporters would be treated as declaration of intent to claim MEIS benefit In exercise of powers conferred under paragraph 2.04 of the Foreign Trade Policy 2015-20, Director General of Foreign Trade, hereby makes the following amendments in Paragraph 3.14(a) of the Handbook of Procedures 2015-20: Existing Paragraph Paragraph 3.14: Declaration of Intent on shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e-Commerce (a) Export shipments filed under all categories o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the shipping bills, petitioner had inadvertently marked "N" (for No) instead of "Y" (for Yes) in the declaration of intent column. Since the EDI system was followed online, corrections could not be done. In the case of non-EDI cases, under the provisions of section 149 of the Customs Act only manual corrections can be made by a party. Respondents' only contention is that since the entire procedure is followed by the system portal there can be no amendment in the shipping bills. Save and except this submission on behalf of the respondents there is no other challenge to the petitioner's case on merit. 11. We have perused the orders and judgments passed by the High Courts of Kerala as well as Madras which have been referred to and relied upon by the petitioner. Identical questions had arisen in the said cases wherein the writ petitioners had filed shipping bills for export of manufactured goods. The writ petitioners therein actually intended to claim benefit under MEIS but while filing the shipping bills, inadvertently opted for "N" (for No) instead of "Y" (for Yes) in the column of declaration of intent. Reliefs claimed in the said petitions before the High Courts of Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al mistake on the part of petitioner should not deprive the petitioner from the benefit of the reward under MEIS. We note that a similar situation was in fact considered by the respondents in respect of shipping bills for the period 01.04.2015 to 31.05.2015 at the time of inception of the FTP, when exporters had inadvertently marked "N" in the "reward item box" and wished to seek MEIS benefit. Public Notice 47/2015-20 dated 08.12.2015 was issued by the DGFT to which we have referred to hereinabove to give the benefit of MEIS reward in such cases. 13. Though we are not happy with the manner in which the reliefs [prayer clauses (a) and (b)] in paragraph No. 14 have been drafted in the present petition, inter alia, seeking directions to the respondents to guide the petitioner by communicating the exact modification required and in the ordinary course would have declined the relief; however looking into the facts and circumstances of the present case coupled with the inherent objective of the Exports from India Scheme, we have considered the petitioner's case. The objective of the MEIS scheme is to provide rewards to exporters to offest infrastructural inefficiencies and associate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
