TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 167
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....ing bill for MEIS has been turned down, be quashed and set aside. 2. The facts as appearing in the memorandum of petition are that the petitioner is a partnership firm situated at Kandla Special Economic Zone (KSEZ) and is duly registered with the Service Tax Department. The petitioner firm is inter alia engaged in the manufacturing of derivatives of Castor Oils and clears its final product to export and is also a certified Three Star Export House. 3. The Government of India introduced the Merchandise Exports From India Scheme (hereinafter referred to as "the MEIS") through the Foreign Trade Policy (FTP) 2015­-2020 with effect from 01.04.2015. It seeks to promote export of notified goods manufactured/produced in India. The MEIS is a major export promotion scheme implemented by the Ministry of Commerce and Industry. Earlier, there were five different kinds of duty scrips with varying conditions attached to their use. Now, all these schemes have been merged into a single scheme, namely the MEIS. 4. The rewards under the MEIS are payable as a percentage of realized FOB value of covered exports, by way of the MEIS duty credit scrip. The scrip can be transferred or used for payme....
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....MEIS Licence No.3719000578 against the exports made from its factory. 9. The petitioner again applied for the MEIS for the exports made during the period from April 2015 to January 2016, under separate applications. The applications came to be partly allowed, whereby twenty five shipping bills for an amount of Rs. 9,10,235/­, were not allowed and were disputed. The petitioner was informed that a reference has been sent to the respondent No.3 DGFT seeking clarification as to whether the shipping bills (Non-­EDI) prior to 01.06.2015 were eligible for the MEIS benefits or not in the absence of the 'Declaration of Intent' for claiming the MEIS benefits by a letter dated 03.08.2016 of the Sr. Accounts Officer, Kandla SEZ. The petitioner requested to allow benefits of the scheme and also requested to allow conversion of the shipping bills in each case. 10. By a letter dated 06.06.2017, the petitioner made a representation to the respondent No.4 ­ Commissioner of Customs, Kandla, requesting him to allow the MEIS benefits on the shipping bills in case the 'Declaration of Intent' was not mentioned prior to 01.06.2015 and also requested to extend the benefit of the Public Notic....
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....ion of the competent authority. The petitioner was asked to submit documents, which came to be duly submitted by a letter dated 27.09.2017 and it also declared the intention to claim benefits under the MEIS. Since there was no response from the respondents, the petitioner requested the respondent No.6 ­ Assistant Commissioner of Customs (Exports) to grant personal hearing regarding the issue of amendment in the shipping bills pursuant to the claims under the MEIS. 14. It appears that thereafter, there were communications inter se between different Departments of the respondents as to who was the proper officer to cancel the LEO and to grant amendment in the shipping bills. Thereafter, the petitioner received a communication dated 01.02.2018 addressed by the respondent No.6 Assistant Commissioner of Customs (Exports) to the Deputy Commissioner of Customs, Kandla, stating that since the application for amendment of shipping bills has been made beyond three months, the amendment could not be permitted in view of the Circular No. 36/2010­-Cus. Dated 23.09.2010 as the same is barred by time. 15. However, despite the fact that the respondent No.6 ­ Assistant Commissioner of....
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....ing bills. Since there was no communication to the petitioner pursuant to the above referred letter, the petitioner addressed yet another representation to the respondent No.2 ­ Under Secretary, Government of India, vide letter dated 22.01.2019, requesting to allow benefits under the MEIS. By a letter dated 11.02.2019, the petitioner was informed that a detailed report with regard to the MEIS has been sought from the Kandla SEZ authority and that the request of the Unit cannot be considered, as the request had been made beyond three months from the date of the LET export order and hence, the same is time barred in view of the Circular No.36/2010­-Cus. dated 23.09.2010. Being aggrieved, the petitioner has filed the present petition. 20. Mr. Dhaval Shah, learned advocate for the petitioner, submitted that rejection of the request of the petitioner to extend benefits under the MEIS on the technical ground of delay is ex facie illegal. It was submitted that the petitioner is eligible for the benefits under the MEIS subject to compliance of all the requirements prescribed under Chapter 3 of the Foreign Trade Policy 2015­-20. The petitioner did not declare its intention to c....
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....o introduce the scheme is to boost exports and therefore, the respondent authorities are not justified in adopting such a rigid stand. 20.5 It was further submitted that since the MEIS was introduced in the month of April 2015, the petitioner was not familiar with the procedure and therefore, due to mistake, declarations were not made in the shipping bills. However, subsequently, the petitioner was able to establish that it is, even otherwise, eligible to claim benefits under the scheme and, therefore, merely because the petitioner had not mentioned the declaration on the shipping bills, would not be a valid ground to deny the benefits thereof. 20.6 Lastly, it was contended that section 149 of the Act does not provide for any period of limitation for amending the shipping bills. It was submitted that it was on account of the conduct of the respondent authorities in not deciding the issue in question that there was a delay in making the application for amendment of the shipping bills. It was, accordingly, urged that the petition deserves to be allowed by directing the respondents to amend the shipping bills by permitting the same to be converted into MEIS and grant the benefits th....
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.... allowed. It was submitted that it is in these circumstances that the 'Declaration of Intent' is a prerequisite for claiming the benefit of incentive scheme and is not procedural and that what the petitioner seeks is the waiver of the prerequisite for obtaining the incentive. 21.3 It was submitted that the precondition for filing of 'Declaration of Intent' is applied on the class as a whole to Non-­EDI shipping bills and that even otherwise, the petitioner is not entitled to the benefit in respect of some of the shipping bills, as they have been filed beyond the period of limitation. It was submitted that if the intention to avail benefits under the scheme is not declared in the shipping bills, the necessary process required for clearing the goods will be missed out. 21.4 It was, accordingly, urged that the mandate of the Circular dated 23.09.2010 for making application for conversion of shipping bills within a period of three months from the date of the Let Export Order cannot be waived and that the applications filed beyond the period of limitation have rightly been rejected by the respondent authorities. It was, accordingly, urged that the petition, being devoid of merits,....
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....ipping Bills: Marking/ticking of "Y" (for Yes) in "Reward" column of shipping bills against each item, which is mandatory, would be sufficient to declare intent to claim rewards under the scheme. In case the exporter does not intend to claim the benefit of reward under Chapter 3 of FTP exporter shall tick "N' (for No). Such marking/ticking shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP. (ii) Non-­EDI Shipping Bills: In the case of Non-­EDI Shipping Bills, Export shipments would need the following declaration on the Shipping Bills in order to be eligible for claiming rewards under MEIS: "We intend to claim rewards under Merchandise Exports From India Scheme (MEIS)". Such declaration shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP. (b) Whenever there is a decision during the financial year to include any new product/goods or new markets then to avail such rewards: (i) For exports of such products/goods, to such markets, a grace period of one month from the date of notification/public notice will b....
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.... circumstances and to address the matter, in exercise of powers conferred under paragraph 1.03 of the Foreign Trade Policy (2015­-2020) read with reference to para 3.14 of Handbook of Procedures of FTP 2015-­20, the Director General of Foreign Trade hereby allows the following procedure to be followed where exports have been made between 1.4.2015 to 31.5.2015, and where the exporter has inadvertently marked "N" in the "reward item box" and wishes to seek MEIS benefits: Exporters shall submit physical copies of free shipping bills after electronic filing Of application to RA at the time of submission of application for MEIS rewards in these cases. RA shall grant MEIS rewards after examination of such shipping bills in accordance with other provisions of FTP/HBP. 4. From 01.06.2015, only those shipping bills, which are transmitted by Custom Authorities to DGFT, shall be considered under MEIS. Effect of this Public Notice: Shipping bills, where declaration of intent 'Y' has not been marked and 'N' has been ticked inadvertently in the 'reward item box' while filing shipping bill in Customs for exports made between 1.4.2015 to 31.5.2015, shall be transmitted by C....
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....informed by the respondent No.5 - Development Commissioner, that since there is no 'declaration of intent' on the shipping bills for claiming benefits under the MEIS, a reference has been sent to the respondent No.3 ­ DGFT for a clarification whether such shipping bills (Non-EDI) prior to 01.06.2015 were eligible for benefits under the MEIS benefits or not. Therefore, till that time, its claim will be kept pending. Thus, the claim was kept pending by the concerned authorities. 30. Vide letter dated 06.06.2017, the petitioner requested the respondent No.4 - Commissioner of Customs, Kandla, to allow benefits under the MEIS on the shipping bills in case the 'declaration of intent' was not mentioned on exports made prior to 01.06.2015, whereupon the petitioner was advised/informed to comply with the amendment in the form of conversion of shipping bills from free to MEIS, whereafter, the petitioner applied for conversion of shipping bill. 31. Subsequently, vide communication dated 18/19.07.2017, the petitioner was informed that the shipping bills are required to be amended by the competent authority under section 149 of the Act and was requested to approach the proper officer of C....
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....ment of its shipping document under section 149 of the Customs Act." The court held thus: "7. In the present case, the appellant had been consistently dealing with the same goods and exporting them previously for over three years. 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 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 declarati....