TaxTMI 
TaxTMI 
2021 (3) TMI 91
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.... this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondent No. 2 to issue such directions / orders to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise Exports from India Scheme to the petitioner; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondents to issue such directions to the Respondents to pass such directions to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise....
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....tates that similar applications filed by the petitioner for the period 2015-16 and 2016-17 for claiming reward under MEIS in respect of various shipping bills have also been rejected on the ground of absence of 'declaration of intent' on the shipping bills. 3.7. Petitioner filed representation dated 17.10.2017 before respondent No.2 and submitted a list of shipping bills on which benefit of MEIS was denied to the petitioner. Petitioner asserted that it was entitled to the reward (duty credit scrips) under MEIS and highlighted several difficulties in claiming the rewards such as:- (i) in certain specified cases (shipping bills) the DGFT portal showed that benefit under MEIS was claimed by the petitioner; (ii) in some cases there was failure to link Electronic Bank Realization Certificate (EBRC) to the shipping bills which was issued by the banks to the exporter for the purpose of claiming benefits under the scheme; (iii) in some case using the E-BRC platform, banks were electronically transmitting foreign exchange realization to the DGFT server directly; and in view thereof, petitioner was denied the benefit under the scheme. 3.8. By order da....
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....rocedural infraction and error on the part of the petitioner at the time of filing application forms for seeking benefit under MEIS being the declartion of intent was not stated or mentioned in the application forms which has led to denial of benefit to the petitioner. He submitted that due to a procedural and inadvertently committed mistake of not affirmatively stating "Y" (for Yes) in the declaration of intent column for claiming reward under MEIS, petitioner has been denied the benefit. He submitted that petitioner committed an inadvertent and bonafide error while filing the application forms for claiming benefit under Chapter 3 of FTP, though the petitioner was entitled for the benefit having completed its export obligations. 5.1. He submitted that clause 3.14 of the FTP prescribes the procedure for declaration of intent of EDI and Non-EDI shipping bills for claiming reward under MEIS; in doing so in cases where exports are made through EDI port, the exporter is required to mark / tick "Y" (for Yes) in the reward column of shipping bills against each item for claiming reward under the scheme; whereas in cases where exports are made through Non-EDI port, the exporter is requi....
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.... deprived of the benefit under MEIS scheme. 5.4. He has referred to and relied upon the following cases in support of the proposition that a party can be allowed to manually carry out corrections in the shipping bills in the case of Non-EDI bills and the respondents can issue the necessary No-Objection Certificate to such party in the case of EDI bills for seeking the benefit under the scheme if such party has inadvertently committed a mistake while filing and uploading the shipping bills on the DGFT portal and not claimed MEIS benefit :- (i) Pasha International Vs. Commissioner of Customs, Tuticorn 2019 (365) E.L.T. 669 (Mad.); (ii) M/s. Global Calcium Pvt Ltd Vs. Asst. Commissioner of Customs & Ors. 2019-TIOL-1259-SC-MAD-CUS; (iii) M/s. Greenglobe Exports India P Ltd Vs. Asst. Commission of Customs & Ors. 2018-TIOL-94-SC-MAD-CUS; (iv) M/s. N C John and Sons Pvt Ltd Vs. Commissioner of Customs. 2019-TIOL-3536-CESTAT-BANG; (v) Anu Cashews Vs. Commissioner of Customs 2019-TIOL-2809-HC-KERALA-CUS. 6. PER CONTRA, Mr. Jetly, learned senior counsel appearing for the respondents has at the outset drawn our attention to the reliefs ....
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....rement which was available in the public domain. He submitted that clause 3.14 of the Foreign Trade Policy (2015-20) states that no person can claim an authorization as a right and DGFT or Regional Authority shall have power to refuse to grant or renew the same in accordance with the provisions of FT (D&R) Act, Rules made thereunder and FTP; in line with the procedural eligibility condition petitioner was not eligible for MEIS benefit as declaration of intent on shipping bills is not merely a procedural requirement but a substantive requirement; petitioner is in the business of import and export since a long time and the provisions for declaration of intent on the shipping bills was available in the public domain since 01.04.2015; petitioner cannot claim ignorance of such an essential policy which is substantive in nature. Therefore, considering the procedural requirement of the scheme the present petition may be rejected. 7. Mr. Raichandani in his rejoinder has referred to a decision of the Supreme Court in the case of Mangalore Chemicals & Fertilizers Ltd Vs. Deputy Commissioner 2002-TIOL-234-SC-CX, more specifically to paragraph No. 11 to contend that provisions of a statute ....
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....e purposes they were intended to serve. In Kedarnath's case itself this Court pointed out that the stringency of the provisions and the mandatory character imparted to them were matters of important policy. The Court observed: " ..... The object of S. 5(2)(a)(ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission ....
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....intent of the legislature is to grant benefit under the MEIS scheme on fulfillment of export obligations and if the petitioner had fulfilled the eligibility criteria and was indeed eligible for the benefit, then the inadvertent mistake committed by the petitioner could not be held against the petitioner for denial of such benefit; the intention of the legislature under the scheme is to grant reward / benefit; and therefore any procedural irregularity or mistake committed by the petitioner cannot be held against the petitioner for denial of benefit. 8. Submissions made by the respective counsel have received the due consideration of the Court. Materials on record have also been perused. 9. Before we proceed to adjudicate the issue it would be beneficial to refer to the Foreign Trade Policy (01.04.2015 to 31.03.2020) [updated as on 05.12.2017] with which we are concerned with in the present case. FTP-2015-20 was launched on 01.04.2015 and introduced a slew of measures by providing a framework for increasing exports of goods and services, generation of employment and increasing value addition, in keeping with the 'Make in India' vision. The Policy was far reaching in nat....
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....orts as given in the Shipping Bills in freely convertible foreign currencies, whichever is less, unless otherwise specified. 3.05 Entitlement under MEIS for export of goods through Courier or Foreign Post Offices Export of goods through courier or foreign post offices as notified in Appendix 3C, of FOB value upto Rs. 5,00,000 per consignment shall be entitled for rewards under MEIS. If the value of exports is more than Rs. 5,00,000 per consignment then MEIS reward would be calculated on the basis of FOB value of Rs. 5,00,0000 only. 3.06 Ineligible categories under MEIS The following exports categories /sectors shall be ineligible for Duty Credit Scrip entitlement under MEIS (i) Supplies made from DTA units to SEZ units (ii) Export of imported goods covered under paragraph 2.46 of FTP; (iii) Exports through trans-shipment, meaning thereby exports that are originating in third country but transshipped through India; (iv) Deemed Exports; (v) SEZ/ EOU /EHTP/ BTP /FTWZ products exported through DTA units; (vi) Export products which are subject to Minimum export price or export duty. (vii) ....
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.... from 01.06.2015 to 30.9.2015 have been otherwise transmitted to DGFT {being Advance Authorisation (AA) / Export Promotion Capital Goods(EPCG)/Duty Free Import Authorisation (DFIA) scheme Shipping Bills}but 'N' has been declared in the 'Reward item' field, the exporter shall submit EP copy of shipping bills and reward may be issued by concerned RA after confirming declaration of intent on physical EP copy of the shipping bills as provided in Para 3.14 of HBP 2015-20. Effect of the 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 bills in Customs for exports made between 01.06.2015 to 30.09.2015, shall be transmitted by CBEC to DGFT. (Anup Wadhawan) Director General of Foreign Trade Email: [email protected] (Issued from File No. 01/61/180/179/AM16/PC-3" 9.3. Public Notice No. 09/2015-20 dated 16.05.2016 is also relevant and it has further simplified the procedure in the case of EDI shipping bills in respect of claiming reward under MEIS and reads thus:- "PUBLIC NOTICE No. 09/2015-20 Dated: 16th May, 2016 Subject: Marking of Y in the....
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....ph 3.14(a) of the Handbook of Procedures 2015-20 for EDI is simplified. The marking of tick in pursuance of the earlier Public Notice No. 47, dated 8th December 2015 shall be treated as declaration of intent in case of EDI shipping bills. The marking of tick in the appropriate tick boxes are mandatory in EDI shipping bills. (Anup Wadhawan ) Director General of Foreign Trade E-mail: [email protected] [Issued from File No. 01/61/180/179/AM16/PC3/Pt]" 10. It is an admitted position that petitioner committed an error while filling the shipping bills. Petitioner had actually intended to claim benefit under what is known as MEIS but while filling the shipping bills, petitioner had inadvertently marked "N" (for No) instead of "Y" (for Yes) in the declaration of intent column. Since the EDI system was followed online, corrections could not be done. In the case of non-EDI cases, under the provisions of section 149 of the Customs Act only manual corrections can be made by a party. Respondents' only contention is that since the entire procedure is followed by the system portal there can be no amendment in the shipping bills. Save and except this submission on behalf of the respon....
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....nvisaged under the policy, handbook of procedure (HOP), rules and various public notices like public notice No. 47/2015-20 dated 08.12.2015 and public notice No. 9/2015-20 dated 16.05.2016 are required to be complied with. In the instant case, while doing so, petitioner had inadvertently committed an error while filing up the claim form on the DGFT portal and entered its declaration of intent as "N" (for No) instead of "Y" (for Yes) resulting in rejection of petitioner's claim for reward under MEIS. Except for this inadvertent mistake, petitioner is otherwise eligible and entitled to the reward under MEIS. In our considered opinion, such a procedural mistake on the part of petitioner should not deprive the petitioner from the benefit of the reward under MEIS. We note that a similar situation was in fact considered by the respondents in respect of shipping bills for the period 01.04.2015 to 31.05.2015 at the time of inception of the FTP, when exporters had inadvertently marked "N" in the "reward item box" and wished to seek MEIS benefit. Public Notice 47/2015-20 dated 08.12.2015 was issued by the DGFT to which we have referred to hereinabove to give the benefit of MEIS reward in....