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TMI Blog2021 (4) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... tent for claiming MEIS benefits had not been waived and the intent must have been clear for claiming the benefits. Undoubtedly, the petitioner had not intimated the intent for claiming MEIS benefits initially on their shipping bills dated 30.03.2015. There is so much of impact prevailing on the export being made from SEZ unit as it was from Kandla SEZ that the export has been made by the petitioner even after the petitioner was granted license in the month of December for having exported the goods worth 17,23,000 US$, there was still a confusion as to whether this mandate would be applicable in case of free shipping bills and whether any export made by Kandla SEZ would be covered. Noticing that the declaration of intent on the shipping bill for claiming the benefit under the reward scheme is made mandatory w.e.f 01.06.2015 under the Foreign Trade Policy, 2015-20 or the Handbook of Procedure, 2015-20, in wake of the aforementioned decision, there could be no exclusion of SEZ or non-EDI Port unit for availing the benefit. The decision of this Court in case of M/S. RAJ AND COMPANY VERSUS UNION OF INDIA [ 2021 (2) TMI 1101 - GUJARAT HIGH COURT] , where the Court has emphasized on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was granted the MEIS License being number 3719000380 dated 03.12.2015 for an amount of ₹ 21.34 lakhs against their exports already from their unit located at KASEZ against the shipping bill no. 3905 LEO dated 22.04.2015. Accordingly, under the above license, reward under the MEIS at the rate of 2% from FOB value of export was the entitlement of the petitioner. It has also under the shipping bill no. 3905 dated 30.03.2015 exported two numbers of cryogenic tanks for liquefied gases for the FOB value of ₹ 10,68,26,000/- equivalent to 17,23,000 US$. 3.4. The petitioner applied for the registration of license to the KASEZ on 22.04.2016, however, no positive response was received for a long time in this regard and eventually on 08.06.2016, the petitioner met the Development Commissioner of Kandla Special Economic Zone and apprise him of lapse of seven months where the benefits were not made available. According to the petitioner, he received a letter on 01.07.2016 suggesting that their authorization has been suspended until further clarification is received from the office of DGFT, New Delhi, on the aspect, whether such SEZ units which are non-Electronic Data I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents, as per the provisions of FTP/HMP 2015-20 the unit was not eligible for MEIS benefits. According to the respondents, paragraph 3.14(a) of the HBP 2015-20, Export Shipments filed under all categories of the Shipping Bills would need the declaration on the shipping bills in order to be eligible for claiming rewards under the MEIS to an extent that the parties intend to claim rewards under the MEIS. Such declaration would be also required for export shipment under any of the schemes of Chapter 4 (including for drawback), Chapter 5 or Chapter 6 of the FTP and in case of shipping bills other than free shipping bills, such declaration of intent would be mandatory w.e.f 01.06.2015. 4.2. It is contended by the respondent that in the instant case, SEZ unit exported goods under the free shipping bills and all the SEZ exports figure into free shipping bills, therefore, the mandatory declaration of intent w.e.f. 01.06.2015 would not be applicable in this case. Therefore, the unit needed to give declaration of intent for claiming MEIS benefits for exports prior to 01.06.2015 i.e. between the period 01.04.2015 to 31.05.2015. MEIS benefits as per the FTP/HBP2015-20 were available for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action, these benefits have been denied. Solely on the basis of absence of declaration of intent which is mandatory in the shipping bills as per para 3.14(a) of the HBP 2015-20 that such denial is there. 5.3. It is further the say of the respondent that condition for intimating the intent had not been waived at any point of time. There cannot be a subsequent declaration as has been done by the petitioner in the instant case and hence, it has urged to dismiss the petition. 6. Rejoinder affidavit has been filed by the petitioner which is not required to be reiterated. It has added that CBEC itself had first clarified in the circular dated 28.04.2015 which is binding to one and all that such declaration of intent is mandatory to all shipping bills filed after 01.06.2015 and in view of teething problem in the earlier period of time, the public notice was issued by the Ministry of Commerce on 09.10.2015 to declare that MEIS benefits were not granted due to technical error for the period from 01.04.2015 to 31.05.2015 and the feasible copies of the free shipping bills can be submitted to claim the same and accordingly, they were granted to one and all. Therefore, the question of den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). 9. Per contra, Mr. Nikunt Raval, learned Central Government Standing Counsel appearing for the respondent has along the line of affidavit-in-reply emphasized that this is concerning the export which has been made on 30.03.2015. Paragraph 3.14 of HBA 2015-20 mandates the declaration of intent for getting the rewards under the MEIS. Such declaration was also a must for export shipment under the scheme of Chapter 4 (for drawback), Chapter 5 or Chapter 6 of the FTP and in case of shipping bills other than free shipping bills, the declaration of intent was a must from 01.06.2015, however, the applicability of mandatory declaration from 01.06.2015 would have no bearing as that was for the exports made between 01.04.2015 to 31.05.2015 whereas, in the instant case, the export has been carried out on 30.03.2015. 9.1. He has further urged that the department has no malice in denying the benefits and in fact, this is the only interpretation which is feasible. He further has urged that the SEZ devision of Department of Commerce already clarified the grievance and for a short time from 01.04.2015 to 31.05.2015 when the on-line filing was a problem, manual shipping bills for claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be applicable in the instant case. 12. Taking into account all the three aspects together, firstly, as a lot hinges on the policy HBP paragraph 3.14 relating to the declaration of intent for reward on goods which requires the exporter to mandatorily declare the intent for reward on shipping bills, for the shipping bills filed from 01.06.2015 onwards, paragraph 3.14(a) requires reproduction at this stage: - 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. 12.1. It is quite clear from this para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports come under the free shipping bills, therefore, the mandatory declaration of intent w.e.f. 01.06.2015 would not be applicable, in case before the Court and the unit had needed to declare its intent for claiming benefit under the MEIS for exports made prior to 01.06.2015 as per the Foreign Trade Policy Handbook of Procedure, the MEIS benefits were available to SEZ w.e.f. 01.04.2015. The Court also has dealt with the case of EDI shipping bills where it was mandatory to file declaration of intent under the manner provided in para 3.14 of the Handbook of Procedure to Foreign Trade Policy vide Public Notice dated 09.10.2015. 14.1. In the matter before this Court thus, in case of Gokul Overseas (supra), the petitioner was not permitted conversion of shipping bills from free shipping bills to MEIS shipping bills because of the circular no. 36 of 2010 of the customs dated 23.09.2010 which provided for conversion, if the request was made within three months from the date of the export order. The Court found it apposite to refer to the decision of Delhi High Court in case of Kedia (Agencies) Pvt. Ltd. vs. Commissioner of Customs [2017 (348) ELT 634 (Del.), wherein the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. (b) Whenever there is a decision during the financial year to include any new product/goods or new markets then to avail such rewards: (I) For exports of such products/goods, to such markets, a grace period of one month from the date of notification/public notice will be allowed for making this declaration of intent. (ii) After the grace period of one month, all exports (of such products/goods or to such markets) would have to include the declaration of intent on all categories of shipping bills. (iii) For exports made prior to date of notification/ public notice of products/markets, such a declaration would not be required since such exports would have already taken place. 24. On a plain reading of the provisions of para 3.14 of the Handbook of Procedure to Foreign Trade Policy 2015-20, it is apparent that the declaration of intent , in the manner provided for EDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Effect of this Public Notice: Shipping bills, where declaration of intent Y has not been marked and N has been ticked inadvertently in the reward item box while filing shipping bill in Customs for exports made between 1.4.2015 to 31.5.2015, shall be transmitted by CBEC to DGFT. 26. Vide Public Notice No.47/2015-2020 dated 08.12.2015, the procedure prescribed vide Public Notice No.40 dated 09.10.2015 has been extended beyond 31.05.2015 for the period from 01.06.2015 to 30.09.2015. 27. From the facts and contentions noted above, 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.36/2010Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conversion of shipping bill. 31. Subsequently, vide communication dated 18/19.07.2017, the petitioner was informed that the shipping bills are required to be amended by the competent authority under section 149 of the Act and was requested to approach the proper officer of Customs under section 149 of the Act, whereupon the petitioner, on 01.08.2017, requested the competent authority to amend the shipping bills under section 149 of the Act at the earliest. 32. Thus, the respondents had not informed the petitioner immediately to get the shipping bills converted into one under the MEIS. It was only after a lot of inter se communication, that the petitioner was advised to get the shipping bills amended and converted to MEIS shipping bills. Upon the petitioner making such application for amendment, after prolonged inter se communications between the respondents as to who had the jurisdiction to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried 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 essentially agricultural produce and continued to be covered as an item eligible for benefit. At the time, just prior to 142008, the goods had been exported as free shipping bills. The exporter/appellant s fault here is that it did not file the requisite declaration. In all other respects, I.e. as to whether they 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. 8. Having regard to these, we are of the opinion that in the peculiar circumstances of the case, the omission to file the declaration of the kind we are concerned with, when all other relative materials are present was not vital to the appellant s case. The material which did and does exist is substantial; the appellant should, therefore, be permitted to amend its shipping bill. The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aside. The respondents are directed to permit the petitioner to convert the shipping bills in question from free shipping bills to MEIS shipping bills subject to the satisfaction of the competent authority. The respondents shall give effect to this order within two months from the date of receipt of copy of this order. Rule is made absolute accordingly, with no order as to costs. 14.2. So far as the case of M/s Raj and Company (supra) is concerned, the petitioner was a Merchant Exporter and exported various items purchased from different manufactures and traders. 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. After he realized the same from the Public Notice, he made a request to allow to amend the shipping bills under Section 149 of the Customs Act. This since was rejected by the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner 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 petitioner inadvertently opted for No instead of Yes . When the system was done manually, the corrections can be made in view of the enabling provision of Section 149 of the Customs Act, 1962 but with the EDI system the correction was not done and the Court held that the petitioner cannot be allowed to suffer for an inadvertent mistake committed by him. It referred to the decision of Saint Gobain India PVT. LTD.(supra). The respondent was directed to issue N.O.C. To enable the petitioner to avail the benefit and thereafter to consider the benefit as may be available to the petitioner expeditiously. 12. The Court thus had recognised the fact that the eligibility of the petitioner to claim benefits under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submissions made by the learned advocate for the petitioner that Section 149 of the Customs Act, 1962 which has been taken recourse to by the petitioner does not prescribe any time limit. It is a discretion of the concerned officer, which can authorize any document after it has been presented in the Custom House to be amended. Of course, this has not to be amended after once the imported goods have been cleared for the home consumption and deposited in the warehouse where export goods have been exported, except on the basis of the documentary evidences, which are in existence at the time of the clearance, deposit or the export of the goods, as the case may be. In the electronic age, all procedures have been simplified and the EDI is essentially keeping pace with the electronic age. The simplification of this process shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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