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TMI Blog2024 (12) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... p etc to be granted or renewed. Section 9(2) provides for processing of such application after making necessary inquiries for grant or renewal as the case may be of the licence, certificate, scrip etc and for recording reasons for refusal. Section 9(5) provides that an appeal against an order refusing to grant or renew or suspending or cancelling a licence, certificate, scrip etc shall lie in like manner as an appeal against an order would lie under Section 15. Section 15(1) begins with appeals from orders passed by the adjudicating authority. When Section 9 deals with issuance of MEIS scrip and the application made for the same and processing of the same, the authority who would be processing the application under Section 9 would not be an adjudicating authority. However, when Section 9(5) provides for appeal in like manner as an appeal against an order would lie under Section 15, it would contemplate an order passed by the authority who need not be an adjudicating authority as defined in Section 2 (a) read with Section 13 of the Foreign Trade (Development and Regulation) Act 1992 but has trappings of the adjudicating authority. Therefore, when there is a reference to Section 15 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and direct the respondent no.4 to pass a speaking order deciding the application of the petitioner dated 27 January 2022. The impugned order dated 10 November 2023 rejecting the petitioner's appeal as non-admissible is quashed and set aside - the rejection letter dated 9 December 2022 passed by the JDGFT and the Order-in-Appeal dated 10 November 2023 passed by the ADGFT is quashed and set aside - petition allowed by way of remand. - M.S. SONAK JITENDRA JAIN, JJ. For the Petitioner: Mr. Sanjeev Nair a/w Mr. Kevin Gogri a/w Ms. Dhruvi Shah, Lumiere Law Partners. For the Respondents: Mr. J.B. Mishra a/w Mr. D.P. Singh a/w Mr. Vikas Salgia. JUDGMENT (PER JITENDRA JAIN J) :- 1. By this petition under Article 226 of the Constitution of India, the petitioner is challenging an Order-in-Appeal dated 10 November 2023 passed by the Additional Director General of Foreign Trade (ADGFT) whereby the said authority has refused to entertain the appeal filed by the petitioner on the ground that the rejection letter issued by the Joint Director General of Foreign Trade (JDGFT) is not a decision or order passed by the adjudicating authority and since Section 15 of Foreign Trade (Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant transaction; (vii) Shipping Bills; (viii) Purchase Orders; and, (ix) Tax Invoices. Petitioner shall make the application within two weeks from the uploading of the copy of this judgement and order. In the event such an application is made, the same shall be considered strictly in accordance with law by the Competent Authority / Respondents by according an opportunity of personal hearing to the Petitioner and a speaking order shall be passed. 4. Pursuant to the above, the petitioner applied to JDGFT on 27 January 2022, along with the documentary evidence. The said application and documentary evidence are on pages 164 to 244 of the present petition. 5. The above-referred application came to be rejected by JDGFT vide communication dated 9 December 2022 by relying upon paragraph 3.06 of the Foreign Trade Policy, which provides those exports made by units under FTWZ are ineligible for duty credit scrip entitlement. The rejection letter further observes that the documents were examined, and no co-relation would be established to substantiate the petitioner's contention. The impugned rejection letter also records that the petitioner himself has accepted that supplies have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of such person or class of persons making an application for licence, certificate, scrip or any instrument bestowing financial or fiscal benefits or in respect of any licence, certificate, scrip or any instrument bestowing financial or fiscal benefits granted or renewed in such manner as may be prescribed. (2) The Director General or an officer authorised by him may, on an application and after making such inquiry as he may think fit, grant or renew or refuse to grant or renew a licence to import or export such class or classes of goods or services or technology as may be prescribed and, grant or renew or refuse to grant or renew a certificate, scrip or any instrument bestowing financial or fiscal benefit, after recording in writing his reasons for such refusal. (3) A licence, certificate, scrip or any instrument bestowing financial or fiscal benefits granted or renewed under this section shall (a) be in such form as may be prescribed; (b) be valid for such period as may be specified therein; and (c) be subject to such terms, conditions and restrictions as may be prescribed or as specified in the licence, certificate, scrip or any instrument bestowing financial or fiscal benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such orders as it thinks fit, confirming, modifying or reversing the decision or order appealed against, or may send back the case with such directions, as it may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary: Provided that an order enhancing or imposing a penalty or redemption charges or confiscating the goods (including the goods connected with services or technology) of a greater value shall not be made under this section unless the appellant has been given an opportunity of making a representation, and, if he so desires, of being heard in his defence. (3) The order made in appeal by the Appellate Authority shall be final. 11. The first issue that needs to be addressed is whether an appeal is provided under Section 15 against a letter rejecting the petitioner's application for grant of MEIS scrip. Section 9 of Foreign Trade (Development and Regulation) Act, 1992 provides for issuance/ suspension/cancellation of licence. Section 9(1) provides that the Central Government may levy fees in respect of application for a licence, certificate, scrip etc to be granted or renewed. Section 9(2) provides for process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise requires . In the instant case, while processing the application for issuance of MEIS scrip under Section 9, the authority who would be processing the application and after making inquiry as he may think fit before granting or renewing or refusing of grant or renew the licence etc. would have to be treated as an adjudicating authority for the limited purpose of Section 15 read with Section 9 because, he is the authority who is deciding the claim of grant of scrip to the applicant and if so construed, then, the letter rejecting the application for issuance of MEIS scrip will have to be treated as a decision or order by an adjudicating authority which would be appealable under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992. Therefore, even on this count, the appeal would be maintainable. 14. Therefore, the ADGFT/Appellate Authority rejecting the appeal because the rejection letter is not a decision or the order passed by the adjudicating authority would not be the correct reading of the appeal provision. 15. Mr. Mishra, learned counsel for the respondents submitted that the appeal ought to have been filed under Section 15 (1) (b) to the Director-General if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments in support thereof which are annexed from pages 164 to 244 of the present petition. However, JDGFT in his rejection order dated 9 December 2022 has curiously, without discussing anything, rejected the claim of the petitioner mainly on the ground that the supplies have been made against Bill of Exports, which are covered under the ineligible categories without considering the contention of the petitioner that the Export was made to overseas buyers on whose instructions, the goods were warehoused in the Free Trade and Warehousing Zone Unit at Andhra Pradesh. Whether such a transaction would be covered by para 3.06 of the FTP, along with other issues is required to be considered. The rejection order is not speaking since it further states that no co-relation could be established, but with respect to what item co-relation could not be established has not been specified. 20. It is a settled position that the quasi-judicial authority speaks his mind through his order, and, therefore, the order dealing with the application should have been a speaking order showing clearly the reason for coming to the conclusion. In our view, this is absent in the impugned rejection letter. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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