2018 (11) TMI 536 - HC - Customs

Court grants writ petition, orders issuance of 'No Objection Certificate' for Foreign Trade Policy benefits.

The court granted the writ petition directing the 3rd respondent to issue a 'No Objection Certificate' for the petitioner to avail benefits under the ... Amendment of shipping bills - electronic data interchange (EDI) system - application of Section 149 of the Customs Act, 1962 - No Objection Certificate for export incentives - Foreign Trade Policy benefits post-amalgamationAmendment of shipping bills - electronic data interchange (EDI) system - application of Section 149 of the Customs Act, 1962 - Whether the shipping bills could be amended to change name and IEC after electronic 'Let Export Order' had been issued - HELD THAT: - The 3rd respondent explained that once the export clearance process is completed in the EDI system and the 'Let Export Order' is issued, amendments to shipping bills under Section 149 of the Customs Act cannot be effected because the EDI environment does not permit post clearance modifications. The Court accepted the practical constraint posed by the electronic process and recorded the 3rd respondent's inability to permit amendment of the shipping bills at that stage. [Paras 5, 6]Amendment of the shipping bills to change the exporter name and IEC after the 'Let Export Order' in the EDI system is not possible; the Court recorded the 3rd respondent's inability to permit such amendment.No Objection Certificate for export incentives - Foreign Trade Policy benefits post-amalgamation - Relief by way of alternative administrative remedy and consideration of export incentive claim following corporate amalgamation - HELD THAT: - Although amendment of the shipping bills was found impracticable in the EDI system, the 3rd respondent indicated willingness to issue a 'No Objection Certificate' (NOC) to enable the petitioner - the amalgamated entity claiming continuity of benefits enjoyed by SEPR - to apply to the authority empowered under the Foreign Trade Policy. The Court directed the 3rd respondent to issue the necessary NOC and required the petitioner to produce it before the 4th respondent. The 4th respondent was directed to consider the petitioner's claim for export incentives expeditiously on the basis of the documents produced, including the NOC. [Paras 6]The 3rd respondent is directed to issue the requisite NOC to the petitioner; the 4th respondent shall consider the petitioner's claim for benefits under the Foreign Trade Policy and pass orders thereon expeditiously within three months of receipt of a copy of the judgment.Final Conclusion: The writ petition is allowed to the extent that the 3rd respondent must issue a No Objection Certificate to the petitioner to enable it to apply for export incentives claimed on account of the amalgamation; amendment of shipping bills in the EDI system after 'Let Export Order' is not feasible, and the 4th respondent is directed to consider and decide the petitioner's claim within three months. Issues:1. Amendment of shipping bills filed by SEPR during April 2013 to Feb 2016.2. Relaxation of policy provisions to permit the petitioner to file application for export incentives.Analysis:Issue 1: Amendment of Shipping BillsThe petitioner, a company amalgamated with SEPR Refractories India Ltd., sought benefits under the Foreign Trade Policy, 2015-20. The petitioner requested amendment of shipping bills to reflect the amalgamation, but the respondents expressed inability to permit the amendments. The 3rd respondent stated that changes in the shipping bills were not possible due to the electronic process in place post 'Let Export Order.' However, the 3rd respondent agreed to issue a 'No Objection Certificate' to enable the petitioner to avail benefits. The court directed the 3rd respondent to issue the NOC, and the petitioner was instructed to present it to the 4th respondent for consideration within three months.Issue 2: Relaxation of Policy ProvisionsThe respondents contended that benefits under the Foreign Trade Policy could be claimed post amalgamation of the companies. The 4th respondent, responsible for relaxing policy provisions, needed to consider the NOC issued by the 3rd respondent to serve the petitioner's purpose. The court ordered the 4th respondent to expeditiously consider the petitioner's claim upon submission of the NOC within three months from the date of the judgment.In conclusion, the court granted the writ petition, directing the 3rd respondent to issue the necessary NOC for the petitioner to avail benefits and instructed the 4th respondent to consider the claim promptly.