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TMI Blog2024 (1) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... e (through EDI based e-filing services). The petitioner accordingly filed four shipping bills as stated hereinabove, however, due to oversight, the CHA of the petitioner did not select YES option and the shipping bills were filed on EDI system with default NO option for availing the benefit of RoDTEP scheme. The petitioner thereafter has filed letters for amendment of shipping bills with declaration of accepting the option of availing the benefits of RoDTEP scheme, which was granted manually under Section 149 of the Customs Act, 1962. However, the petitioner is not permitted to amend the shipping bills, which are already uploaded in the EDI system. In such circumstances, the respondent authorities cannot deny the benefit of RoDTEP scheme to the petitioner as the petitioner is otherwise eligible for the same. This Court in the case of Gokul Overseas [ 2020 (3) TMI 167 - GUJARAT HIGH COURT] the facts before the court, where the petitioner omitted to file declaration of intent within three months from the date of the late export order as stipulated in the CBEC circular no. 36/10 dated 29.03.2010 for availing the benefits under the Merchandise Exports From India Scheme (MEIS) was permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents to allow modification in the online system to enable the Petitioners to correct the technical error by allowing selection table RODTEPY for shipping bills to be under reward scheme and process the application to grant export incentives under RoDTEP to the Petitioner or alternatively direct Respondent No. 4 and 5 to recall and amend the 4 Shipping Bills granting the RoDTEP benefit. (c) that this Hon'ble Court may direct the Respondents to improve the software/system so as to enable the Petitioners or similarly placed assessed to upload the manually amended shipping bill on the portal either themselves or through the officers of the Respondents to avail the export incentives admissible in law. 2. Brief facts of the case are as under:- 2.1 The petitioner, having its Plant at C-21, Lawrence Road, Industrial Area, Delhi, 110035 and head office at 4068-69, Naya Bazar, Delhi - 110006, is a partnership firm. The Petitioner is holding Importer-Exporter Code No. 0509076807. In regular course of business, the Petitioners exported India Origin Moong Whole (hereinafter referred as export goods) to the respective foreign customers situated outside India. 2.2 The Ministry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of RoDTEP (1,23,92,856*4%=4,95,714/-) 2 5451943 21.10.2021 INMUN1 Same as above (2,12,23,200*4% = 8,48,928/-) 3 5671001 29.10.2021 INMUN1 Same as above (2,17,70,700*4%=8,68,428/-) 4 5853436 08.11.2021 INMUN1 Same as above (1,19,63,700*4%=4,78,548/-) Total Rs. 26,91,618/- 2.8 In all the aforementioned shipping bills, filed for export of goods, the Petitioners customs house agent (CHA) processed the shipping bills and claimed the benefit of Duty Drawback, however, due to oversight of Petitioners CHA, shipping bill was further processed with default option 'NO' without selecting 'YES' for making exports under claim of RoDTEP benefit. Result of this being that Exports are considered only for the benefit of duty drawback and not considered for benefit of RoDTEP though otherwise Petitioners are entitled for the same. 2.9 On realizing this technical error, the CHA of the Petitioners first approached Respondent No. 4 vide letter dated 21.11.2021 and requested them to amend the abovementioned 4 shipping bills, under Section 149 of the Customs Act, 1962, by rectifying the reward column from 'No' to 'Yes'. 2.10 Office of the Respondent No. 3 vide letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left with no other option but to file the present Petition. 2.16 Further, it is pertinent to note that the Petitioners have filed 2 other shipping bills having SB No. 6358310 and 6357947 dated 29.11.2021 for export of same goods to the same consignee and claimed the benefit of RoDTEP which was duly granted to the Petitioners. Therefore, the same clarifies that the Petitioners are eligible for the benefit of RoDTEP scheme. 2.17 Aggrieved by the letter issued by the office of Respondent No. 3 vide F.No.CUS/DBK/MISC/403/2021-DBK-O/o Pr. Commr-Cus-Mundra/7138 having DIN No. 20211271M000003833AB dated 15.12.2021 and non-response to the subsequent letters, the petitioners have approached this Court by way of the present petition. 3. Learned advocate Mr.Nainavati for the petitioner submitted that the respondent authorities could not have rejected the benefit of RoDTEP scheme on the ground that the system is not designed/capable to amend the shipping bills online which have otherwise been amended manually. It was submitted that the technical inefficiency of the system cannot be a ground to deny the substantial benefit for which the petitioner is eligible. 4. It was submitted that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, reported in 2023 73 LT 49 Guj. and in facts of the said case, this Court permitted the benefit of MEI scheme to the assessee-petitioner for the exports by converting of the free shipping bills to MEIS shipping bills by directing the respondent authority to accept the request for conversion of the free shipping bills to MEIS shipping bills beyond the time prescribed as per circular no. 36/2010 dated 23.09.2010. 7. Reliance was also placed by the learned advocate Mr.Nainavati for the petitioner on the following decisions:- 1. the Hon ble Madras High Court in the case of Pasha International vs. Commissioner of Customs, Tuticorin, reported in 2019 (365) E.L.T. 669 (Mad.) 2. the Hon ble Kerala High Court in the case of Anu Cahews vs. Commissioner of Customs, Cochin, reported in 2020 (371) E.L.T. 241(Ker.) 3. the Gujarat High Court in the case of M/s.Jindal Saw Ltd. vs. The Chief Commissioner of Customs, reported in 2022 (1) TMI 73. 8. Learned advocate Mr. Nainavati therefore submitted that the respondent authority may be directed to grant benefit of RoDTEP scheme to the petitioner by setting aside the impugned letter dated 15.12.2021 and by allowing the modification in onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for goods for which claim of duty credit is not filed shipping bill or bill of export in the custom automated system. It was, therefore, submitted that the petitioner is not filed the shipping bills on custom automated system making declaration for availing the benefit of RoDTEP scheme and therefore, the same cannot be now permitted to be amended by the custom automated system. It was, therefore, submitted that no interference may be made while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 12. Having heard learned advocates for the respective parties and considering the facts of the case, it is not in dispute that the petitioner is eligible for the export benefit under the RoDTEP scheme in law and as per the notification of the scheme. 13. For export of goods around India to customer situated outside India, the exports have to file shipping bills in two ways (a) filing of shipping bills manually (non-EDI) and (b) filing of shipping bills online (through EDI based e-filing services). 14. Indian Customs EDI Gateway (hereinafter referred to ICEGATE) platform as provides EDI-based e-filing services, including electronic filing of Shipping Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if everything is found to be in order after examination of the goods and scrutiny of the documents. (f) Issue of Shipping Bill: After the Let Export order is given, the printout of the shipping bill is generated. The examination report printed on the shipping bill is to be signed by the Appraiser, Examiner as well as the customs house agent/exporter. The name and licence no. of the customs house agent should be clearly mentioned below his signature. Export general manifest (EGM) has to be filed by shipping carrier of goods, once after 'export' takes place To avail the scheme of RoDTEP, as per the procedure exporter is required to follow the following procedure: a. the exporter or CHA shall make a claim for RoDTEP in the shipping bill by making a declaration. b. Once EGM is filed, claim will be processed by Customs. c. Once processed a scroll with all individual Shipping Bills for admissible amount would be generated and made available in the users account at ICEGATE, d. User can create RoDTEP credit ledger account under Credit Ledger tab. This can be done by IECs who have registered on ICEGATE with a DSC. e. Exporter can log in into his account and generate scrip after sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 C/SCA/7500/2019 JUDGMENT 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 availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. This Court in the case of Oriental Carbon And Chemicals Limited vs. Union Of India, reported in 2021 (377) E.L.T 850 (Guj) has held as under:- 21. Section 149 of the Customs Act, 1962, specifically permits amendment of the shipping bills even after the export on the basis of the documentary evidence which was in existence at the time the goods were exported. There is no restriction in the said provision for not allowing the amendment after the goods are exported unless the goods are checked at the time of export. Hence, the authorities cannot to introduce such restrictions de hors the said provision. The respondents had themselves asked the writ-applicant to remove the deficiency (i.e. lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular. 26. In the case of M/s. Mahalaxmi Rubtech vs. UOI, (SCA No.21636 of2019, decided on 2.3.2021), this Court upheld that the Circular is ultra vires Articles 14, 19 (1) (g) of the Constitution and Section 149 of the Customs Act, 1962. Therefore, the said Circular cannot be relied upon. 27. In the present case, the authorities had themselves sought clarification from the DGFT as to whether such declaration was mandatory prior to 1.6.2015 and were awaiting such clarification. The authorities had even issued three scrips to the writ-applicant against six of its applications, which were later suspended while awaiting such clarification. Hence, it is not correct to blame the writ-applicant for not having sought amendment immediately. 28. Unlike in other cases, in the present case, no authority issued any communication to the writ-applicant to seek amendment of the shipping bills under Section 149 of the Customs Act, 1962. Even the letters addressed by the respondents in August 2018, asking to remove the deficiency, did not specify that the writ-applicant would have to seek amendment under Section 149 of the Customs Act, 1962. The said letters were addressed at the wrong address of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res during the period between 1.4.2015 and 31.3.2015, i.e. during the initial period of the FTP, 2015-20. 34. The writ-applicant's shipping bills were non-EDI only because the Mundra Port was not an EDI port. 35. This lapse being a technical or a procedural lapse, the writ-applicant should not be denied substantive benefits, as held by this Court in the case of Bombardier Transportation India Pvt. Ltd. (supra). 36. The authorities themselves were not sure whether the declaration was mandatory prior to 1.6.2015 as is evident from the following : (a) Public Notice No. 40/2015-20 dated 9.10.2015 wherein, in para 3, it is stated that such declaration is mandatory from 1.6.2015. (b) The authorities had even issued three scrips to the writ-applicant against six of its applications. (c) The authorities had, in fact, sought clarification from the DGFT as to whether the declaration was mandatory prior to 1.6.2015. 37. The authorities themselves have permitted the writ-applicant to remove the defect vide their letters dated August 2018. 38. The case of M/s. Gokul Overseas (supra) is similar to the case on hand. In that case also the shipping bills were non-EDI and this Court allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Nos.1 and 2 had permitted the manual amendment of shipping bill in question being the shipping bill bearing No.5561585 dated 14.06.2018 while filing shipping bill online in EDI system of the customs inadvertently systems had got been corrected value of goods exported as has been noted by the PRC Committee in its meeting. A representation made had weighed with the said Committee. The Customs, Mundra had assessed and finalized the consignment, however, the amendment since had not been reflected in EDI systems of the DGFT, that resulted in preventing filing the MEIS claim. Hence, the Committee in its report dated 30.10.2018 had referred the matter to EDI / NISD for DGFT to make suitable provisions to grant MEIS benefits against the same shipping manually. The Committee had also reviewed on 24.09.2019 on the basis of the comments received from E-Governance and Trade Facilitation (EGTF) section and observed that the reflection of such manual amendment in the automated system is not feasible, hence, request of the firm has been rejected. The issue is more of procedural in nature than of substantive kind as the software has the limitation and it does not permit even after the manual c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in case of M/s Shree Renuka Sugars Ltd vs. Union Of India, reported in 2023 (4) TMI 789 in similar facts of granting benefit under RoDTEP scheme has issued the following directions:- 5. As the controversy unfolds as above, the court is of the view that the following directions would serve the ends of justice. Accordingly it is provided that, (i) The petitioner shall be entitled to claim the RoDTEP Scheme benefit in respect of the exports of white refined sugar at the rate permissible. Even if such benefit is not claimed or mentioned in the shipping bills, the petitioner is permitted to make necessary application seeking such benefit in respect of the consignments concerned. (ii) The passage of time in making such applications which would occur as amount would not be mentioned in the shipping bills, would not render the claim of the petitioner time barred. (iii) The non-mentioning of the claim of the benefit in the shipping bill by the petitioner shall also not be treated as waiver on part of the petitioner by the authorities. (iv) The authority shall process the claim of the petitioner for RoDTEP Scheme benefit irrespective of the fact that the same was not mentioned or lodged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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