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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 ..... ithin a stipulated time. (B) Any other reliefs deemed fit proper and incidental in the facts of the present case may kindly be granted." 3. The brief facts leading to the present petition are as follows: - 3.1. The unit of the petitioner is located at Kandla Special Economic Zone (hereinafter referred to as 'KASEZ') and they are engaged in the manufacture and export of Cryogenic Tanks and Vessels and such other specially manufactured items as per the Special Economic Act and its allied rules and regulations. 3.2. The challenge in this petition is to the denial of rewards under the Merchandise Exports from India Scheme (hereinafter referred to as 'MEIS') based on technical objections and procedural infractions when the substantial benefits had accrued and available in favour of the petitioner. It is further the say of the petitioner that in Foreign Trade Policy (hereinafter referred to as 'FTP') and in Export Import Policy 2015-2020 there are certain rewards as this was a specific scheme by the Government of India introduced for the benefits of exporters and to encourage them since the same is meant for contributing to the earnings of the country. 3.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely. 3.7. On 29.09.2016, the petitioner had been intimated denial of the substantial benefit to the petitioner. The petitioner was also advised by the Custom House Agency to seek an amendment in the shipping bills by the customs authorities as the same is permissible for the exports only. Accordingly, the request for amendment certificate for shipping bills for adding declaration of their intent was requested for, so that, the benefit under the MEIS could be made available. This was done on 08.11.2016 to the Commissioner of Customs, Kandla. 3.8. It is the grievance on the part of the petitioner that despite these marathon efforts on the part of the petitioner, nothing concrete had emerged. It is a specific case of the petitioner that declaration of intent was not necessary to be made on the shipping bill as in view of the mandate made applicable under the relevant policy and circular, this came into being only w.e.f. 01.06.2015. 4. On issuance of notice by this Court on 11.10.2018, affidavit-in-reply has been filed for and on behalf of respondent nos. 1 to 5 on 04.12.2018 where they denied each and every allegations and contentions. 4.1. According to the respondents, as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing bill no. 3905 dated 30.03.2015 of the petitioner because as per paragraph 3.14(a) of HBP 2015-20 announced on 01.04.2015, it is mandatory to have declaration of intent for being eligible to claim rewards under the MEIS. It is, therefore, the say of the respondent that, if the shipping bills were filed under any of the schemes of Chapters 4, 5 or 6 before 01.06.2015 for such shipping bills, declaration of intent was not mandatory. To have free shipping bills or non-scheme shipping bills, such declaration was mandatory even before 01.06.2015. 5.1. It has also emphasized on the clarification made by the Department of Commerce vide its communication dated 29.09.2016 that a window for manual shipping bills for claiming MEIS benefits was allowed for a period from 01.04.2015 to 31.05.2015 due to short-term problems in on-line filing, the condition for intimating intent for claiming MEIS benefits had not been waived and the intent must have been indicated for claiming the benefits on the shipping bills dated 30.03.2015. The petitioner does not become eligible as per the existing procedure at para 3.14. 5.2. It has also denied that due to procedural infraction, these benefits have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Commerce, Government of India provided that for the period in question of the shipping bill dated 30.03.2015, such declaration of intent was not mandated and therefore, the subsequent benefit cannot be admitted or denied because of mere technical reasons. It is further urged that the public notice was issued on 08.12.2015 in furtherance of the same and the interpretation on the part of the authorities vide its letter dated 29.09.2016 is itself contrary to the very policy. He has urged that when the purpose of such policy is to encourage the export and when there is no doubt about the export having been made as declared by the petitioner, the technicality should not rule the substantial entitlement. 8.1. Learned advocate Mr. Dave has sought to rely on the decision of this Court rendered in case of Messrs Gokul Overseas vs. Union of India, reported in (2020) 373 ELT 49, the decision of the Madrash High Court rendered in case of Pasha International vs. Commissioner of Customs, Tuticorin, reported in 2019 (365) E.L.T. 669(Mad.) and also of Saint Gobain India Pvt. Ltd. vs. Union of India, reported in 2018 (361) E.L.T.1000 (Ker.). 9. Per contra, Mr. Nikunt Raval, learned Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it which is non-EDI port can receive such benefit for any shipping bill prior to 01.06.2015, more particularly, when the clear declaration of intent of availing the benefit of MEIS was missing on the shipping bill. The communication of the authority concerned on 05.07.2016 clarified that paragraph 3.14 of the Handbook of Procedure of Import Export Scheme 2015-20 mandates the declaration of the intent on the shipping bill mandatory from 01.06.2015, this Handbook of Procedure would not permit any benefit to the petitioner in absence of any declaration of intent of his availing these benefits, for this being absent in the shipping bill itself. 11. There are three impediments which can be culled out from this communication (i) the export was made by the petitioner on shipping bill dated 30.03.2015 which is prior to 01.04.2015, (ii) the declaration of intent for claiming MEIS benefits of export is needed for the period between 01.04.2015 to 31.05.2015, (iii) the export was from SEZ unit which exports the goods under the free shipping bills and therefore, the mandatory declaration of intent w.e.f. 01.06.2015 would not be applicable in the instant case. 12. Taking into account all the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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. 14. It is to be noted that two of these aspects are already covered by the decision of this Court rendered in case of Gokul Overseas (supra) as also in case of M/s Raj and Company vs. Union of India delivered by this Court in Special Civil Application No. 17804 of 2019 on 08.02.2021. In case of Gokul Overseas (supra) the Court dealt with extensively the provisions of paragraph 3.14 of the Handbook of Procedure of Foreign Trade Police, 2015-20 where the declaration of intent in the manner provided in EDI shipping bills have been made mandatory, whereas, in case of non-EDI shipping bills, such declaration was not mandatory. It was argued before the Court by the respondent in the affidavit-in-reply that it was a case of SEZ unit which exported the goods under the free shipping bills and all the SEZ exports come under the free shipping bills, therefore, the mandatory declaration of intent w.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 e-Commerce: (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 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 Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 electronic filing Of application to RA at the time of submission of application for MEIS rewards in these cases. RA shall grant MEIS rewards after examination of such shipping bills in accordance with other provisions of FTP/HBP. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 - Commissioner of Customs, Kandla, to allow benefits under the MEIS on the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 force of law. Handbook of Procedures and the amendments carried 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to MEIS shipping bill has been made beyond the time prescribed in Circular No.36/2010Customs 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 petitioner of the benefits under the MEIS in 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondent there that the petitioner had approached competent respondents for amendment of the name and undergone the process of amalgamation with SEPR Refractories India Ltd. from that of SEPR to Saint Gobain India Pvt. Ltd., to avail the benefits under the Foreign Trade 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.12.2015 had been treated as a declaration of intent in case of EDI shipping bills. 14. What we notice is that in case of Messrs Gokul Overseas (supra) 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 prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de from 01.04.2015 to 31.05.2015, declaration of intent was a must from 01.06.20215 and that would not exclude the exports made prior thereto, on account of the export having been made, fulfilling all requirements and with no disputes in that regard, the objective of promotion of export cannot be overlooked. 15.2 Again, export is from Kandla SEZ, where there was no explicit mandate of declaration of intent on free shipping bill. And, even if they are treated as shipping bills and not free shipping bills, that initial absence of declaration for want of any obligation may not come in the way of the petitioner, more particularly, in wake of peculiar facts and circumstances and the discussion of law on the subject. 16. 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 & Company (supra), where the Court has emphasized on procedurality not to hamper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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