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TMI Blog2023 (9) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly grant the benefits of the MEIS to the petitioners within a period of eight weeks from the date of receipt of this order. - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: For The Petitioner No. 1,2 : Mr Mihir Joshi, Senior Counsel With Mr Nisarg Desai And Ms Pravalikha Batthini, Advocates For Gandhi Law Associates (12275) For The Respondent(S) No. 1,2 : Mr Harsheel D Shukla (6158) ORAL ORDER (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1. Rule. Mr. Harsheel Shukla, learned advocate appearing for respondents waive service of notice of rule. With the consent of learned advocates for the parties, matter is taken up for final hearing today. 2. This petition under Article 226 of the Constitution of India has been filed with the following prayers: a) That this Hon'ble Court be pleased to issue against the Respondents a Writ of Mandamus under Article 226 of the Constitution of India calling for the records of the Petitioners' case relating to the impugned Orders/decisions (Annexure-A (Colly.) and after looking into the same and the legality thereof, this Hon'ble Court be pleased to quash and set aside the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt setting NO . Therefore according to the Petitioners there was a mistake in unchecking the box NO . 3.5 The Petitioner approached the Customs Authorities seeking amendment in the Shipping Bills as there is no system or mechanism to carry out the amendment. The petitioner No. 1 approached the Respondent No. 2 by various letters/ applications dated 6.7.2018, 21.09.2018, 23.10.2018, 21.06.2019 etc for grant of MEIS scrips based on the amendment certificates. The Petitioner was heard by the Policy Relaxation Committees and in one of the Committee meetings dated 25.2.2020 the Petitioner No. 1 s application for grant of MEIS was rejected holding that the Shipping Bills which are ticked with NO do not get electronically transmitted on-line in the automated environment and therefore no case was made out to claim MEIS scrips. 4. Mr. Mihir Joshi, learned Senior Advocate appearing with Mr. Nisarg Desai and Ms. Pravalikha Batthini, learned advocates for Gandhi Law Associates would submit that several decisions of this Court as well as those of the Kerala High Court and the Madras High Court have held that where there was an inadvertent mistake in the declarations with intent of the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit under MEIS and if through a inadvertent error now the Petitioner who had clicked NO then no action can be taken as no data of the shipping bills as such would be reflected in the DGFT server. He would submit that marking of Y or N is not merely a procedural requirement but is a substantive one from the perspective of risk management at the time of export. The Shipping Bills marked N escape the evaluation and the assessment system. He therefore would submit that the petition deserves to be dismissed. 6. The Division Bench of this Court in the case of Bombardier Transportation India P. Ltd. (supra) has held as under: 17. Thus, as stated hereinabove, the respondent no. 4, after due verification of the documentary evidence existing at the time of the export duly amended the shipping bills manually from MEIS SCHEME - No to MEIS SCHEME YES by way of Amendment Certificate dated 09.10.2018. Hence, the writ-applicant now having satisfied the MEIS conditions i.e. exported Notified Goods (Metro Coaches) to Notified Territory (Australia) cannot be deprived of the necessary MEIS benefits. 18. The entitlement to MEIS benefits is governed by the Chapter-III of the Foreign Trade Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IM REWARD UNDER MEIS'. Therefore it was found that the denial of the claim to avail the benefit could not have been done in a mechanical manner, merely because there was a technical lapse on the part of the exporter in not checking a particular box in the web portal; more so when there was sufficient indication in other details entered therein about the intention of the exporter to claim the rewards. Therefore the writ petitions were disposed of by directing the appellants as well as the Director General of Foreign Trade to consider the claim of the writ petitioners for export benefit, afresh, in the light of the observations contained in the judgment and to the grant export benefits, if on an overall consideration of the details furnished by the writ petitioners the intention to claim the benefit of the MEIS was seen manifested at the time of export. The claim was directed to be considered afresh within a period of one month from the date of receipt of a copy of the judgment, after hearing the writ petitioners. In the meanwhile, the Customs Authorities were directed to issue necessary 'No Objection Certificate' in favour of the writ petitioners for processing the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, 2020 (2) TMI 1266 Madras High Court (iii) M/s. Global Calcium Private Limited Vs. The Assistant Commissioner of Customs (EDC) and Ors., 2019 (6) TMI 811 Madras High Court (iv) Saint Gobain India Pvt. Ltd. V. Union of India, 2018 (11) TMI 536 - Kerala High Court (v) Commissioner of Customs, Cochin v. NC John and Sons, 2020 (374) ELT 465 - Kerala High Court 22. The decisions rendered by various High Courts have not been appealed before any higher forum by any of the respondent till date. 23. The writ-applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no. 3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system. 24. In this regard, a reference is made to the decision in the case of Dar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low of MEIS Scheme as it does not recognize said manual correction, the petitioner is deprived of the benefits. 15. This Court in the case of Bombardier Transportation India Pvt. Ltd. Vs. DGFT reported in 2021(377) ELT 489 (Guj.) was considering the similar issue to hold thus: The writ applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no.3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system. 16. No technicality can mar the right of the parties which otherwise accrued under the substantive law. Here when genuineness of the export and entitlement of petitioner otherwise is not in any manner disputed, this technical glitch shall in no manner hamper the request of the petitioner of getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of all the requirements prescribed under Chapter 3 of the Foreign Trade Policy 201520. The petitioner did not declare its intention to claim rewards under the MEIS while filing shipping bills; however, on realising such mistake, the petitioner immediately approached the concerned authorities for amending the shipping bills and clarified its intention, but it was not considered on the ground of delay. 24. On a plain reading of the provisions of para 3.14 of the Handbook of Procedure to Foreign Trade Policy 201520, it is apparent that the declaration of intent , in the manner provided for EDI shipping bills, has been made mandatory, whereas in the case of Non-EDI shipping bills, such declaration of intent is not stated to be mandatory. The respondents, in their affidavit in reply, have stated that the instant case is of a SEZ unit which exported the goods under free shipping bills. All the SEZ exports come under free shipping bills. Therefore, the mandatory declaration of intent with effect from 01.06.2015 will not be applicable in this case. Therefore, the unit has to declare its intent for claiming benefits under the MEIS for exports made prior to 01.06.2015, that is, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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