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TMI Blog2024 (11) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... dents, their officers and subordinates to issue a Trade/ Public Notice for extending the benefit under MEIS for products namely Para Cumidine and Diaminostilbene 2, 2-disulphonic acid (DASDA) with their revised ITC HS Codes of 2921 49 20 and 2921 59 40 respectively and also to extend such export benefit in an expeditious manner. "AA. That the Hon'ble Court may be pleased to issue and appropriate writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ directing the Respondent No. 2 and/or 3 for issuance of an appropriate Notification reinstating the benefits and appropriate refund along with applicable interest under the MEIS Scheme. B. And pass, such further order/orders for granting relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice C. That the Hon'ble Court may be pleased to issue and appropriate writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ as excluding the products i.e Para Cumindine and DASDA classified under HS Code 29214921 and 29215940 retrospectively, even without expressed and categorical exclusion, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HS Code for 2 Ethyl Hexanol along with the reward rate. 13. In case of the petitioner, out of three products namely, Diaminostilbene 2, 2-disulphonic acid (DASDA), Para Cumidine and 2 Ethyl Hexanol only the reward rate for 2 Ethyl Hexanol was notified. 14. Revised ITC HS Code of Para Cumidine and Diaminostilbene 2, 2-disulphonic acid (DASDA) are neither notified nor excluded because of which the petitioner was not able to avail the benefit under the MEIS Scheme. 15. The petitioner made various representations to the competent authority to get the reward rates for the revised ITC HS Codes notified by Notification No. 38/2015-2020 and various email communications were made to respondent nos. 2 and 3. 16. On 06.08.2020, the petitioner made a representation to the respondent No. 2 with a request to notify the reward benefits for the revised ITC HS Codes which was replied by the respondent asking the petitioner to approach the Basic Chemicals, Cosmetics & Dyes Export Promotion Council (CHEMEXCIL) which was set up by the Ministry of Commerce & Industry, Government of India. 17. The petitioner thereafter by email dated 07.08.2020 requested the CHEMEXCIL for redressal of the grievanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court by filing the present petition. 26. During the pendency of this petition, following order was passed by this Court on 02.12.2021: "1. Petitioner is before this Court seeking following reliefs: "6. In view of the facts and circumstances stated above, it is most respectfully prayed: A. That this Hon'ble Court may be pleased to issue an appropriate Writ of mandamus or a Writ in the nature of mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India, ordering and directing the Respondents, their officers and subordinates to issue a Trade/Public Notice for extending the benefit under MEIS for products namely Para Cumidine and Diaminostilbene 2, 2-disulphonic acid (DASDA) with their revised ITC HS Codes of 2921 49 20 and 2921 59 40 respectively and also to extend such export benefit in an expeditious manner. B. And pass, such further order/orders for granting relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice." 2. We have heard Mr. A.S. Mishra, learned advocate for the petitioner. According to him, after the running from pillar to post in differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emented retrospectively from 01.01.2020 which is contrary to the settled legal position and therefore, such retrospective applicability cannot be made and therefore, export made during the period 01.01.2020 to 1.07.2020 would have the applicable rates as per the Public Notice No. 38/2015 dated 01.01.2020. 33. It was submitted that public notice dated 10.07.2020 had included only the product 2 Ethyl Hexanol bearing HS Code 29209099 with retrospective effect but for other two products, MEIS reward rates remained to be declared as they were never excluded categorically till the lapsing of MEIS benefits and for the first time respondents have taken the stand that it was excluded which was never implemented by the force of law or by way of a Trade notice. 34. It was therefore, submitted that from period 10.07.2020 there was no specific exclusion of the product under reference to deny the benefit of rebate under the scheme. 35. It was therefore, prayed that benefit under the scheme ought to have been extended to the petitioner for the period from 01.01.2020 onwards till the subsistence of the MEIS scheme. 36. On the other hand, learned advocate Mr. P.Y Divyeshvar for the respondent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Notification no. 38/2015-2020 at Annexure-D page 90 refers to both the items, i.e. ITC HS Code 29214920 and 29215940 as free items. Similarly in public notice no.12/2015-2020 dated 10.07.2020 was issued with a view to add MEIS entries in Appendix 3, Table 2 for exports made with effect from 01.01.2020 and Table B of the said notification provides for benefits for the entries which would not be applicable where rate is zero for exports made with effect from 01.01.2020 as those codes have ceased to exist with effect from 01.01.2020. 43. On perusal of the Table B of the Notification No. 12/2015-2020 dated 10.07.2020 ITC HS Codes 29214920 and 29215940 are not notified. Therefore, it appears that Code Nos. 29214920 and 29215940 have continued to be part of Appendix-3B Table 2 of the scheme having old CTI 29214990 and 29215990 respectively. 44. In such circumstances, office memorandum date 28.12.2023 issued by respondent no. 3 Board is relevant which reads as under : "Subject: Special Civil Application No. 16051 of 2021 filed in the matter of M/s Deepak Nitrite Limited v/s UOI and Ors, before the Hon'ble High Court of Gujarat at Ahmedabad. Please refer to email dated 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to interpretation of Policy, or provision in Handbook of Procedures, Appendices and Aayat Niryat Forms or classification of any item for import/export in the ITC (HS)." 5. In this regard, accordingly, the request of the firm for inclusion of HS Codes 29214920 and 29215940 retrospectively w.e.f. 01.01.2020 under MEIS scheme cannot be considered 6. This is issued with the approval of the DG, DGFT." 47. The aforesaid reasons assigned for denial of the benefit are contrary to the Notification No. 38/2015-2020 dated 01.01.2020 read with public notice no. 12/2015-2020 dated 10.07.2020 which does not exclude HS Codes 29214920 and 29215940 as both the notifications are issued only with a view to syncronise the HS Codes with Finance Act (No. 2) of 2019. 48. Appendix 3B Table 2 was introduced to MEIS Scheme from day one and on perusal of both the aforesaid notifications and public notice, there is no change in the said Table more particularly when items which were excluded are specifically stated in the notification and public notice. 49. In that view of the matter, the contention raised on behalf of the respondent that after creation of specific ITC HS Code for these products, al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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