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TMI Blog2023 (2) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... as High Court held that DHL logistics, the FTWZ, merely offers a facility to the petitioner to warehouse its consignments that are to be exported. The destination is decided by UTEXAM, which is the ultimate purchaser, which has paid the petitioner in USD for the consignment. The stipulation in Clause (vii) deals with exports made by a unit in the FTWZ. DHL, the FTWZ does not export the consignments but only facilitates such exports. The exports are thus, by the petitioner through DHL to a destination abroad. In the present case, the decision of Jindal Drugs would be clearly applicable. The company i.e. M/s Siddhartha Logistics is merely a FTWZ logistics company located in Andhra Pradesh. The said company was involved neither in the manufacture of the products nor the entire sale transaction. It was merely providing logistical support to enable the shipment move within India and ultimately to the French customer i.e. Dedienne Aerospace. Further, it is also noticed that M/s Siddhartha Logistics has already issued its no objection giving consent to the Petitioner to claim the drawback benefits. The documents, which have been placed on record, leave no manner of doubt that the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Andhra Pradesh for exporting the same Dedienne Aerospace. On 19th July, 2018 a shipping bill was raised, reflecting the Petitioner as the "Exporter" and the Dedienne Aerospace as the "Client". The said bill also reflected that M/s. Siddhartha Logistics was accepting the consignment on behalf the Dedienne Aerospace. All the relevant documents including the purchase order, shipping bill cargo receipt and the invoices have been placed on record. 4. The total amount, which was to be received by the Petitioner, has been received by way of foreign remittance. The total realization of the consideration amount in foreign exchange has also been confirmed by the certificates of foreign inward remittance issued by HDFC Bank on 12th December, 2017, 19th April, 2018, 14th September, 2018, 10th December, 2018 and 8th July, 2019. 5. The case of the Petitioner is that in view of the said documents and the export having been carried out in terms of the Foreign Trade Policy (2015-2020) (hereinafter, "FTP"), the Petitioner is entitled for Duty Credit Scrips (hereinafter, "MEIS Scrip") under the Merchandise Exports from India Scheme. It is submitted that the said scrip was in fact granted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h September 2021 to the Respondent No. 2 reiterating that there had been no misrepresentation or mis-direction by the Petitioner. The Petitioner also brought to the notice of the Respondent No 2 the judgment of Jindal Drugs (supra). Thereafter the Petitioner was, afforded a personal hearing on 17th September, 2021. The Petitioner also filed W.P.(C) 10603/2021 challenging the impugned show cause notice. 11. The Respondent No. 2 passed the impugned order dated 17th September, 2021 cancelling the MEIS scrip previously issued to the Petitioner, imposing a penalty of INR 1,00,000/-, directing the Petitioner to pay the duty credit amount, and placing the name of the Petitioner and its directors on the Denied Entity List (DEL), depriving them of all fiscal benefits and export privileges. 12. Aggrieved by impugned order dated 17th September, 2021, the Petitioner had filed a writ petition before this Court being W.P. (C) No. 10709/ 2021, challenging the impugned order and the show cause notice. In the said writ petition, vide order dated 28th September, 2021, this Court permitted the Petitioner to file a statutory appeal. The operative portion of the order dated 28th September, 2021 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2021, nor place the petitioner in the 'Denied Entity List' till the appeal is disposed of on merits. 7. In the light of the aforesaid stand taken by the respondent by which they will remain bound, the writ petition is disposed of by granting two weeks' time to the petitioner to file a statutory appeal assailing the impugned order dated 17.09.2021. In case such an appeal is filed within the time so granted, the respondents will deal with the same expeditiously by passing a reasoned and speaking order after granting due opportunity of hearing to the petitioner as per the prescribed procedure. 8. It is further directed that, in case, an adverse order is passed against the petitioner, the same will not be implemented for a period of one week from the date of passing of the said order. 9. Needless to state, it will be open for the petitioner to assail the said order, as permissible in law." 13. Thereafter, the Petitioner filed a statutory appeal against the order dated 17th September 2021, before the Respondent No. 3. The appeal Petitioner came to be heard and decided by the impugned order dated 31st January, 2022 passed by the Respondent No. 3. 14. A perusal of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogistics in Chennai was used as logistics support. In the context of the said facts, the ld. Single Judge of the Hon'ble Madras High Court vide judgement dated 30th July, 2021 observed as under: "17. The question of eligibility to the Scheme is fundamental to the prayer sought by the petitioner. Para 3.06 of the Scheme sets out seven categories of transactions/entities that would be ineligible for the benefits of MEIS. I have extracted the same at pargraph 5 of this order and do not repeat it again for the sake of brevity. 18. The first is, supplies effected by a Domestic Tariff Area (DTA) to a unit situated in a Special Economic Zone (SEZ), the second, export of imported goods covered under paragraph 2.46 of the Free Trade Policy, third, exports through trans-shipment, i.e,. exports originating from elsewhere and routed to another destination through India, fourth, deemed exports, fifth, products of SEZ/EOU/EHTP/BTP/FTWZ exported through the DTA, sixth, exports which are subject to Minimum Export price or export duty and lastly, the seventh, exports made by units in SEZ. The first and last prohibitions are held against the petitioner. 19. Supplies made by a DTA unit to a SEZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The interpretation put forth by the petitioner is accepted, the impugned order is set aside and this Writ Petition allowed. No costs. Connected Miscellaneous Petitions are closed. 26. The scrips are for the months of May, October and June, 2018 with a validity of two years expiring on 27.05.2020, 09.10.2020 and 12.06.2020. These Writ Petitions have been filed on 19.06.2019 when the scrips were alive and current. Thus, in order to effectuate the relief granted now, there is a consequential direction to R3 to re-validate scrips bearing No.0319167227 dated 28/05/2018 for Rs.45,03,800.00 (scrip No.1), No.0319191300 dated 10/10/2018 for Rs.4,41,870/- (scrip No.2) and No.0319170001 dated 13/06/2018 for Rs.16,31,840/- (scrip No.3) and extend the same for the duration of the pendency of these Writ Petitions. The TRAs will be issued immediately thereafter and the aforesaid exercise will be carried out within a period of four (4) weeks from today. " 18. This decision of the Hon'ble Madras High Court has also been considered by the ld. Division Bench of Bombay High Court in M/s Ashwini Ashish Dighe (supra). Relevant part of the judgment dated 20th January, 2022 passed in M/s Ashwini Ashi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein merely offered a facility of warehousing to the Petitioner therein to facilitate the export. None of the above issues have been pleaded, and effectively proved by the Petitioner, save and except one shipping bill which does not evidence the aforesaid position in the case of the Petitioner." 19. In the present case, the decisions of Jindal Drugs (supra) and M/s Ashwini Ashish Dighe (supra) would be clearly applicable. The company i.e. M/s Siddhartha Logistics is merely a FTWZ logistics company located in Andhra Pradesh. The said company was involved neither in the manufacture of the products nor the entire sale transaction. It was merely providing logistical support to enable the shipment move within India and ultimately to the French customer i.e. Dedienne Aerospace. Further, it is also noticed that M/s Siddhartha Logistics has already issued its no objection giving consent to the Petitioner to claim the drawback benefits. 20. Under such circumstances, though the shipping bills dated 30th July, 2018 and 19th July 2018 describe M/s Siddhartha Logistics as an exporter or as the client, the actual exporter is Horizon Aerospace (India) Pvt. Ltd., The mere description or misdescr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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