2023 (7) TMI 449

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....he proceedings proposed in the SCN. Aggrieved, the department is now before the Tribunal. 2. Ld. A.R Ms. Anandalakshmi Ganeshram appeared and argued for the Department. It is submitted that the impugned order is not legal and proper in dropping the case against the respondent. It was revealed during investigation that respondent had been issued with Status Holder Incentive Scheme (SHIS) scrips and Zero Duty EPCG Authorization simultaneously during the year 2011--12. The SHIS scrips had been issued to the respondent on 06.04.2011 and thereafter Zero Duty EPCG Authorization had also been issued between 23.03.2012 and 29.03.2012. 3. The condition 2(4) of Notification dated 11.09.2009 reads as under : "that the importer is not issued, in the year of issuance of zero duty EPCG authorization, the duty credit scrips under SHIS scheme under para 3.16 of the Foreign Trade Policy. SHIS scrips which are not issued in a particular year for the reason that zero duty EPCG authorization has been issued in that year shall not be issued in future years also." 4. The said notification was amended vide Notification No.42/2012--Cus. dated 22.06.2012 wherein condition No.2 (4) was ame....

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....ring the 2011 for the exports of year 2009--10 and the respondent has not availed simultaneous benefit and there has been no contravention of condition 2 (4) of the notification. Ld. Consultant adverted to condition 2 (4) of the notification and submitted that the said condition was amended by Notification No.92/2010 dt. 10.09.2010 which has been referred to in the SCN. Prior to that, the said condition 2 (4) reads as under : "That the importer does not avail, in the year of import of the goods, the benefit of the Status Holder Incentive Scheme under Para 3.16 of the Foreign Trade Policy". 8. The procedure for EPCG was prescribed in para--5 of the Handbook of Procedures Volume V1. As per para 5.1A of the HBP (v1), states that "Zero Duty EPCG Scheme shall also not be available to applicants, who avail in that year, the benefit of Status Holder Incentive Scheme under Paragraph 3.16 of FTP." 9. The procedure for issuance of SHIS is prescribed in para 3.10 of HBP(v1). Para 3.10.3 effective from 23.08.2010 to 04.06.2012 reads as under: "The last date of filing the application shall be 31st March 2011/2012/2013 for SHIS scheme for exports made during 2009--10/2010....

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....uty EPCG Authorisation. The respondent has received clarification by e--mail dt. 28.07.2014 wherein it has been clarified that availing SHIS against exports of 2009--10 and zero duty EPCG during 2011--12, do not violate the provision stipulated by Public Notice No.12 dated 26.7.2013. The Commissioner has taken note of this clarification issued by DGFT and also held that spirit and intent of the notification has to be taken into consideration along with Hand Book of Procedures and the Foreign Trade Policy for the relevant years. He prayed that the appeal may be dismissed. 12. Heard both sides. 13. The issue to be decided is whether the respondent is entitled for the benefit under the Notification No.102/2009--Cus. dt. 11.09.2009 as amended by Notification No.42/2012 dt. 22.06.2012 or whether there is violation of conditions of the said notification as alleged by the Department. 14. Relevant conditions of the notification has already been reproduced. The basis for issuing the SCN is that respondent has received SHIS scrips as well as Zero Duty EPCG Authorization scheme in the same year i.e. 2011--12. From the records as well as the arguments it is brought out that SHIS scrip....

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....relevant year for SHIS benefits with regard to exports made in 2009--10. Therefore, issue of SHIS scrip in 201--12 for exports made in 2009--10 and issue of EPCG authorisations in 2011--12 is in line with the Para 3.10.3 (b) of FT read with Public Notice No.12 dated 26.07.2012 and hence not hit by the condition No.5 of the Notification No.102/2009. ... ... ... 30. The subject exemption notification No.102/2009--customs was issued to implement the Foreign Trade Policy of the Government of India and thus it incorporates condition, if any, laid down in the foreign trade policy read with the procedures prescribed to implement the same. Hence it is absolutely essential that the conditions prescribed in the notification are read in terms of the said policy, the procedures, the public notices issued to clarify the same and any other clarification issued in this regard y the DGFT as well as by the CBEC. ... ... ... 36. Had the issue of the zero duty authorizations or the SHIS scrip in this case been in contravention of the policy and the procedures as stated above the concerned office of the DGFT could have cancelled the said SHIS or could have rejected ....