9911796707
TMI Blog2024 (8) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... ce whereof shall be communicated atleast 3 working days in advance. Petition disposed off. - K. R. SHRIRAM JITENDRA JAIN, JJ. For the Petitioner : Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b. PDS Legal. For the Respondent Nos. 1 to 3 : Mr. D. P. Singh a/w Mr. Advait Sethna and Mr. Vikas Salgia. For the Respondent No. 4 : Mr. Saket R. Ketkar. ORAL JUDGMENT : (PER K. R. SHRIRAM, J.) 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally. 2. Petitioner has approached this Court challenging the legality and validity of decisions taken by the Policy Relaxation Committee ( PRC ) in meeting No. 07/AM23 held on 21st June 2022 and meeting No. 08/AM24 held on 26th June 2023, inter alia, rejecting request of Petitioner by holding that Bill of Export is a mandatory document in terms of Foreign Trade Policy ( FTP ) for discharge of Export Obligation ( EO ) of Advance Authorisation ( AA ) even in case of supplies to Special Economic Zone Unit ( SEZ ). According to Petitioner the action on part of Respondents in not accepting the supplies made by Petitioner to units located in the SEZ in discharge of EO against AA issued to Petitioner solely on the ground of non-submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 13th May 2019 and was also called upon to attend a personal hearing, if deficiency was not cured. Petitioner attended the personal hearing given by Respondent No.3 on 12th June 2019 and submitted that the supply to the SEZ unit was under the invoices and the said invoices alongwith ARE-1 be considered as evidence of export in lieu of Bills of Export and Export Obligation Discharge Certificate ( EODC ) be issued. 5. This request of Petitioner was not accepted and after few personal hearings and few deficiency letters, Petitioner received the impugned order by way of minutes of the meetings dated 21st June 2022 and 26th June 2023 issued by Respondent No.2. By the said minutes, the Committee decided to reject Petitioner s request to condone the procedural lapse in not preparing Bill of Exports and to consider AA in lieu of Bill of Exports towards fulfillment of EO against AA. 6. An affidavit-in-reply has been filed on behalf of Respondent Nos.1 to 3 by one Haroon Bilal affirmed on 26th February 2024 and one Umesh Shripal Chougule affirmed on 2nd January 2024 on behalf of Respondent No. 4. The stand taken by Respondent Nos.1 to 3, which is also adopted by Respondent No. 4, is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 01.07.2017, the exporter may submit the following corroborative evidence in lieu of 'Bill of Exports': a. ARE-1 (showing the Advance Authorisation No./DFIA file No. and) duly attested by jurisdictional Central Excise/GST Authorities of AA holder/DFIA Exporter b. Evidence of receipt of supplies by the recipient in SEZ c. Evidence of payment made by the SEZ unit to the AA/DFIA exporter as per Para 4.21 of FTP. 5. This Policy Circular is issued with the approval of DGFT. (K M Harilal) Joint Director General of Foreign Trade (Issued from file no. 1/94/180/025/AM20/PC-4) 8. The DGFT has decided to, in exercise of powers vested with the Competent Authority in terms of paragraph 2.59 of the FTP, relax the requirement of submission of Bill of Export in case of exports made to SEZ Unit / Developer / Co-Developer under AA for all such supplies made prior to 1st July 2017. Mr. Singh was unable to explain why the cut-off date is given as 1st July 2017 and infact was candid to say he had raised the same query with DGFT to which he has not received any response . 9. In view of the cut-off date of 1st July 2017 as per the Circular, out of the 37 supplies mentioned in the application dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-2013 that the advance authorisation number or whatever certificates obtained by SEZ Customs Authorities as proof of the export obligation being fulfilled were obtained subsequently. In that regard, what we find is that there is a signature appearing at page 102 of the paper-book on Form ARE-1. certified copy of 28-10-2013, therefore the Policy Relaxation Committee was of the view that on 29-8-2013, when the copy of the document was forwarded, it did not contain the advance authorisation number but it was subsequently put and therefore in November, 2013, the copies were forwarded bearing such numbers. 65. The petitioner had clarified that they were in touch with the Central Excise Authorities and they subsequently certified this form with the advance authorisation number. They requested for intervention by the Committee, as a special case. 66. We are of the view that in the facts and circumstances of this case, the petitioner having duly supplied the copies of the ARE-1 forms, it is only a further technical objection, of the said form not mentioning the advance authorisation number in the initial copies of the same but supplied later on, could have been condoned. It is not as if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the affixation of a stamp bearing the date of the advance authorisation and its number, unless they were satisfied that these are the very ARE-1 forms and issued at the relevant time, of which the petitioner has brought the copies. That is how the copies have been certified by them. Even if one were to be hyper-technical and insist on absolute fulfilment of the procedural requirement, to our mind, in the facts and circumstances of this case, the authorities Could have concluded that this requirement is duly fulfilled. 70. Once we have held on facts that the requirement is duly fulfilled, then, we do not think that it is necessary to advert to the provisions of the SEZ Rules and particularly Rule 30 thereof. All the more when supplying goods from the domestic tariff area to SEZ is taken as equivalent to an export of goods physically from this country to abroad. Once such an act of the petitioner is taken to be an export, entitling them to the benefits of the advance authorisation and the scheme in respect thereof, then, all the conditions stipulated in that authorisation ought to be taken as fulfilled. Therefore, the Policy Relaxation Committee, as an afterthought, could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents and in favour of the petitioner by the decisions of this Court in Larsen and Tubro Ltd. (2018) 360 E.L.T. 289 and Rochem Separation Systems India Pvt. Ltd. Vs. Union of India Ors. (Writ Petition No. 10999 of 2018, dated 27th September, 2018). In both the aforesaid decisions, this Court has taken a view that failure to produce a copy of the assessed bill of export in respect of the supplies made to SEZ, would not necessarily result in holding that there was a failure to discharge export obligation where one is able to establish supplies made to SEZ by production of copies of ARE-1. 5. In the facts of this case, both the minutes of the meeting / orders dated 29th August, 2016 and the review order thereon dated 6th July, 2017 rejected the petitioner's application for relaxation only on account of failure to produce copy of bill of export of their supplies to SEZ. However, in the present facts, as in the earlier two cases party has been able to establish that supplies have been made to SEZ units i.e. M/s. Pipavav Shipyard Ltd. Ramapura, Gujarat and M/s. Hansen Drives Ltd. Coimbatore, Tamil Nadu. [emphasis supplied] 12. We also note that the Special Leave Petition that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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