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TMI Blog2021 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents there is no other challenge to the petitioner's case on merit. The facts in the present case are identical to the facts of Pasha International [ 2019 (2) TMI 1187 - MADRAS HIGH COURT ] decided by the Madras High Court and there are no reason as to why the petitioner herein should not be extended the benefit under MEIS considering that the only lapse on the part of the petitioner was that it had inadvertently mentioned in the reward column N (for No) instead of Y (for Yes). This is a procedural defect and is curable considering the fundamental objective of the scheme under Chapter 3 of the FTP 2015-20. The basic objective of the Exports from India Schemes is to provide reward to the exporters and to promote manufacture and export of notified goods / products to notified markets. Once this is done, the party is entitled and eligible to claim its reward - In the instant case, while doing so, petitioner had inadvertently committed an error while filing up the claim form on the DGFT portal and entered its declaration of intent as N (for No) instead of Y (for Yes) resulting in rejection of petitioner's claim for reward under MEIS. Except for this inadvertent mistake, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interim and ad-interim reliefs in terms of prayer clause (a) to clause (b); (d) For costs of this Petition; (e) For such and other reliefs as the nature and circumstances of the case may required. 3. Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts as pleaded:- 3.1. Petitioner is a private limited company situated in Santacruz Electronics Export Processing Zone (for short SEEPZ ), a Special Economic Zone in Mumbai and engaged in the manufacture and export of electronic motors. Petitioner is entitled to special fiscal provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 4013543 under the provisions of section 149 of the Customs Act, 1962. 3.9. Petitioner filed a second representation dated 16.10.2018 before respondent No.4 with respect to denial of benefit under MEIS due to the difficulties faced by the petitioner and sought leave to carry out amendment in the shipping bills under the provisions of section 149 of the Customs Act, 1962 (for short the Customs Act ). 3.10. Petitioner preferred appeal before the Commissioner of Customs (Appeals) to challenge the order dated 10.05.2018. By order dated 12.02.2019, Commissioner of Customs (Appeals) dismissed the petitioner's appeal on the ground of jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribes 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 submitted that in the present case, due to an inadvertent mistake on the part of the petitioner, instead of marking Y (for Yes) in the reward column of the shipping bills, petitioner had marked N (for No) thereby leading to denial of benefit to the petitioner. This mistake on the part of the petitioner has led to denial of benefit due to the petitioner. He submitted that in respect of some shipping bills though the benefit is not claimed by the petitioner, yet it is reflected in the system portal of the DGFT that MEIS benefit towards the said shipping bills have already been claimed; in respect of some shipping bills though the petitioner has exclusively do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S; (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 same cannot be granted. 6.1. He has referred to the affidavit in reply dated 29.01.2020 filed on behalf of respondent Nos. 1 and 4 wherein it is contended that the petitioner's application for claiming reward under MEIS was declined due to absence of declaration of intent to claim MEIS benefit in the respective shipping bills; while applying online for claiming MEIS benefit petitioner chose the Non-EDI ports of export being SEZ and marked N (for No) in the column of declaration of intent / reward instead of Y (for Yes) and failed to make the declaration of intent in the export promotion copies of shipping bills submitted by it. 6.2. He has referred to clauses (g) and (h) of section 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 or procedural infraction while claiming the reward, the same was required to be disregarded. Paragraph 11 of the judgment reads thus:- 11. We have given our careful consideration to these submissions. We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. In Kedarnath's case, the question for consideration was whether the requirement of the declaration under the proviso to Sec. 5(2)(a)( ii) of the Bengal Finance (Sales-tax) Act, 1941, could be established by evidence aliunde. The court said that the intention of the Legislature was to grant exemption only upon the satisfaction of the substantive condition of the provision and the condition in the proviso wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsequent notification which contain condition of prior-permission clearly envisages a procedure to give effect to the exemption. A distinction between the provisions of statute which are of substantive character and were built-in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. What we have here is a pure technicality. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied. The words are that he will grant . There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld--not for any valid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, 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 manufactures under the EPCG scheme etc. 9.1. Chapter 3 relates to Exports from India Schemes. In so far as MEIS is concerned, the relevant provisions are contained in clauses 3.00 to 3.06 which read thus: 3.00 Objective The objective of schemes under this chapter is to provide rewards to exporters to offset infrastructural inefficiencies and associated costs. 3.01 Exports from India Schemes There shall be following two schemes for exports of Merchandise and Services respectively: (i) Merchandise Exports from India Scheme (MEIS). (ii) Service Exports from India Scheme (SEIS). 3.02 Nature of Rewards Duty Credit Scrips shall be granted as rewards under MEIS and SEIS. The Duty Credit Scrips and goods imported / domestically procured against them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectorate 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: 8 th 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 rewards under MEIS where exports had been made through EDI generated shipping bills between 01.04.2015 to 31.05.2015 and the exporter had inadvertently marked N in the reward item box and wished to seek MEIS benefit. 2. Subsequently representations have been received from exporters and trade industry that such procedure should also be made applicable to exports-made beyond 31.05.2015. 3.To suitably address the matter, in exercise of powers conferred under paragraph 1.03 of the Foreign Trade Policy(FTP)(2015-2020) read with para 3.14 of the 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 1.6.2015 to 30.9.2015 through EDI generated shipping bills, and where the exporter has inadver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, 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 of the Shipping Bills 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. In the case of shipping bills (other than free shipping bills), such declaration of intent shall be mandatory with effect from 1st June 2015 Amended Paragraph: Paragraph 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 mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kerala and Madras were for seeking a direction to the DGFT to amend the shipping bills filed by the petitioners to enable the petitioners to avail benefit under the scheme. In the said cases it was the specific contention of the respondent i.e DGFT that there can be no amendment in the shipping bills since the entire procedure was followed by the system portal. However, in those cases it was conceded by the respondents that they would issue No-Objection Certificate to the aggrieved petitioners to enable them to make appropriate applications for availing the benefits under the scheme. The Courts held that in the event of such No Objection Certificate being issued to the writ petitioners, they would thereafter apply for seeking the benefit under the scheme and the respondents shall consider such claim of the petitioners and pass appropriate orders expeditiously. 12. We find that the facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 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 associated costs. In other words, the objective of Merchandise Exports from India Scheme (MEIS) is to promote manufacture and export of notified goods / products to notified markets and once this is done, such exporter is required to be rewarded by duty credit scrips which can be utilized by the exporter. There is no ambiguity or doubt that the petitioner has not exported the goods; petitioner in fact has carried out its export obligations fully and is therefore eligible for the reward under MEIS; this has been accepted by the respondents also. However, due to inadvertence and erroneous mistake committed by the petitioner, it has been denied the incentive. 14. Therefore, on a thorough consideration of the matter, we hold that the petitioner is entitled to the reward under MEIS in respect of its shipping bills wherein exports of notified goods / products with ITC(HS) code to the notified markets have been ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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