TaxTMI 
TaxTMI 
2021 (12) TMI 1453
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....pping bills. (B)Pending hearing and final disposal of the captioned petition, Your Lordships may be pleased to direct the respondent No.2 to allow the petitioners to amend the shipping bills and to issue MEIS benefit on the basis of the amended shipping bills." 2. The petitioner Company under the provisions of Chapter 3 of Foreign Trade Policy for year 2015-20 read with Appendix 3B was entitled to the incentive / reward under the "Merchandize Exports from India Scheme" ("MEIS" for short) was entitled to Duty Credit Scrips equivalent to 3% of the FOB value of products exported under CTH 87089100, 87081010, 843144990, 84312010 and 2% of the FOB value of the products exported under CTH 85030010. During the period from 10.04.2019 to 27.07.2019, the shipping bills which were electronically filed for exports made by the petitioner Company captured "MEIS" under the column for "Exim Scheme Name" and "36" under the column for "Exim Scheme Code". In the invoices section, the shipping bills, according to petitioner, captured "N" instead of "Y" for reward scheme though in the template, which was filed by the petitioner Company "Y" was selected for all invoices. 3. It is the say of the pe....
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....reward scheme for the first invoice only and "N" for balance invoices. This is the major hampering ground in claiming MEIS Scheme. This was brought to the notice of the Committee on 13.09.2019 and the request was made to allow the amendment in shipping bills in order to claim MEIS benefits. Similar request was also made to NSDL Data Base Management Limited and Export Promotion Council. The Senior Manager, NSDL in response, communicated that they have no issue in amending the file however, online DGFT does not accept such online amendment and accordingly advised to approach the office. The Committee mechanically decided on the basis of justification furnished by the firm that the shipping bills were ticked as "No" for whatsoever reason, do not get electronically transmitted online in the automated environment and accordingly rejected the case of the petitioner. Hence, the present petition where on issuance of Notice, an affidavit-in-reply is filed by the respondent No.1, Deputy Director General of Foreign Trade, Vadodara, Gujarat, denying all the averments made and contentions raised by the petitioner. 7. According to the respondent, issuance of MEIS are notified in the Foreign Tra....
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.... the respondent that the Public Notice No.09/2015-20 dated 16.05.2016 provides that the EDI Shipping Bill filed at Electronic Data Interchange enabled the ports was made mandatory and marking is to be made at the time of filing of the shipping bills. Rule 3.14 of the HPB is reproduced hereinbelow: 3.14 Procedure for Declaration of Intent on EDI and Non EDI shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e commerce. (i) EDI Shipping 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)..." 10. Rule in para 3.14 makes it clear that marking of "Yes" in Shipping Bill is a mandatory condition and the petitioner since did not mark the same, he has not fulfilled the condition which is mandatory and has resulted into making MEIS inadmissible. 11. Para 2.58 of the FTP has been depended upon which says that DGFT in public interest passed such orders or grant....
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....ping bills, export has been carried out by the petitioner exporter and he has substantiated the same by way of the documentary evidences, which had happened from 12.05.2016 to 05.01.2017. The Public Notice had been amended firstly on 04.05.2016 and thereafter, on 22.09.2016 whereby Sri Lanka was included and export to Sri Lanka has also been covered under the scheme of MEIS at the rate of 2% and 3% respectively. 7.1 Reference also needs to be made at this stage of the Public N7. Having thus heard the learned advocates on both the sides and also having noticed that the case of the petitioner falls under the MEIS which is a scheme meant for promoting the export, these are the rewards under the MEIS payable as percentage mentioned in the scheme itself can be transferred for the payment of number of duties and taxes. As can be gathered from material which has been placed on the record is that Sri Lanka was placed in Group-C in the Public Notice No.2 of 2015 dated 01.04.2015. In Gazette of India, the Ministry of Commerce and Industry, Department of Commerce provided in exercise of the powers conferred under para 2.04 of the FTP 2015-20, the schedule of country groups and the code wis....
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....k of Procedure ('HBP' for short) 2015-20 before allowing reward, subject to other provisions of FTP/HBP. There are other details for those shipping bills which have been already transmitted to DGFT and 'N' has been declared in the reward item field where the exporter is obligated to submit the EP policy of shipping bills and reward. The shipping bills and reward are to be issued by the concerned Regional Authority (RA). It clearly states that the shipping bills where the 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 Central Board of Excise and Customs to DGFT. 8. Public Notice No.09/2015-20 dated 16.05.2016 amends paragraph No.3.14 in the following manner: "Amended paragraph No.3.14: Procedure for Declaration of Intent on EDI and Non EDI shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e- Commerce (a) (i) EDI Shipping Bills: Marking/ticking of "Y" (for Yes) in "Reward" column of shipping bills against....
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....mendment of the shipping bills. This was necessitated as the petitioner company was at the time of making such a request was an amalgamated company and was entitled to the benefit under the Foreign Trade Policy, 2015-20, which was enjoyed by the SEPR Refractories India Ltd. and the private limited company undergone the process of amalgamation with SEPR Refractories India Ltd. The statement had been made for and on behalf of the respondent there that the petitioner had approached competent respondents for amendment of the name and undergone the process of amalgamation with SEPR Refractories India Ltd. from that of SEPR to Saint Gobain India Pvt. Ltd., to avail the benefits under the Foreign Trade Policy and the contention raised was that after the introduction of electronic process in shipping bills, the amendments under Section 149 of the Customs Act,1962 cannot be done in the EDI system as no notification can be done in the system after the Export Order' is given. It is stated, however, that the 3rd respondent can issue a 'No Objection Certificate' to the petitioner for availing the MEIS benefit and the 4th respondent before Madras High Court was the authority to relax....
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....und, the Court in detail considered the procedure for declaration of intent on EDI and NonEDI shipping bills as provided under Chapter 3 of the FTP 2015-20 and also referred to the decision of Delhi High Court rendered in case of Kedia (Agencies) Pvt. Ltd. v. Commissioner of Customs, reported in 2017 (348) ELT 634 (Del.). In case of MESSRS GOKUL OVERSEAS (supra) the Court has held and observed thus: "23. Chapter 3 of the Foreign Trade Policy 201520 has introduced the Merchandise Exports From India Scheme. The procedure for claiming benefit under the said scheme has been provided under the Handbook of Procedure to Foreign Trade Policy 201520. Para 3.14 thereof provides for the procedure for 'Declaration of Intent' on EDI and NonEDI shipping bills for claiming benefits under the MEIS, including export of goods through courier or foreign post offices using eCommerce. Subclause (I) of clause (a) thereof provides the procedure for 'declaration of intent' in case of EDI shipping bills; and subclause (ii) of clause (b) thereof provides the procedure for 'declaration of intent' on any EDI shipping bills. Para 3.14 of the Handbook of Procedure, reads as under: "3.14 Procedure for Decl....
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....from 01.06.2015 will not be applicable in this case. Therefore, the unit has to declare its intent for claiming benefits under the MEIS for exports made prior to 01.06.2015, that is, for the period between 01.04.2015 to 31.05.2015. As per the Foreign Trade Policy/Handbook of Procedure 201520, MEIS benefits were available to SEZ units with effect from 01.04.2015. 25. In case of EDI shipping bills, where it was mandatory to file the 'declaration of intent' in the manner provided in para 3.14 of the Handbook of Procedure to FTP (201520), vide Public Notice 40/20152020 dated 9th October,2015, it has been provided thus: "2. As per para 3.14 of Hand Book of Procedure to FTP (201520), all exporters while filling export shipments under all categories of the shipping bills are required to declare the following intent to claim benefit under MEIS: "We intend to claim rewards under Merchandise Exports from India Scheme (MEIS)". Declaration of intent is mandatory with effect from June 1, 2015. CBEC has also issued a circular no. 14/2015 dated April 20, 2015, which requires mandatory declaration of intent from 1.6.2015 onwards. In EDI generated shipping bills, exporters are required to tic....
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....s been regularly filing its claim for similar goods under the MEIS for later periods and it appears that the petitioner is otherwise eligible for benefits under the said scheme. Therefore, in the light of the provisions of section 149 of the Act read with the provisions of Circular No.36/2010Customs dated 23.09.2010 and Notification No.40/2012( NT) dated 02.05.2012, the decision regarding conversion may be taken on the basis of documentary evidence which was in existence at the time when the goods were exported subject to the satisfaction of the competent authority. 28. Thus, the eligibility of the petitioner to claim benefits under the MEIS has not been doubted. The sole hurdle in the case of the petitioner is that since the shipping bills are free shipping bills, wherein no 'declaration of intent' has been made, the petitioner is required to get the shipping bills amended by incorporating the following 'declaration of intent': "We intend to claim rewards under Merchandise Exports From India Scheme (MEIS)". 29. In this case, the petitioner applied for the MEIS for the exports made during the period April 2015 to January 2016, under separate applications. The said application....
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....ovides that the conversion may be allowed subject to the conditions laid down thereunder. Condition (a) thereof reads thus: "Request for conversion is made by the exporter within three months of the date of the Let Export Order (LEO)". From paragraph 4 of the circular, the reason for providing such time limit appears to be that free shipping bills (shipping bills not filed under any export promotion scheme) are subject to 'nil' examination norms. 34. In the facts of the present case, as noticed earlier, it is not the case of the respondents that the petitioner is not otherwise covered by Circular No.36/2010Customs dated 23.09.2010. The sole ground on which the application has been rejected is for non compliance of condition (a) of paragraph 3 of the said circular, namely that the application has been filed beyond a period of three months from the date of filing the Let Export Order. 35. At this juncture, it may be apposite to refer to the decision of the Delhi High Court in Kedia (Agencies) Pvt. Ltd. v. Commissioner of Customs, 2017 (348) ELT 634 (Del.), on which reliance has been placed by the learned advocate for the petitioner, wherein the question that arose for consid....
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.... the petitioner's request for amendment in the shipping bills to incorporate 'declaration of intent', furnished comments for specific recommendations on the issue to respondent No.6 - Assistant Commissioner (Exports), Office of the Commissioner of Customs, Kandla, stating that the petitioner is filing regularly its claim for similar goods under MEIS for later periods and it appears that the petitioner is, otherwise, eligible for the said scheme. Therefore, in the light of the provisions of section 149 of the Act read with the provisions of Circular No.36/2010Customs dated 23.09.2010 and Notification No.40/2012( NT) dated 02.05.2012, the decision regarding conversion may be taken on the basis of documentary evidence which was in existence at the time when the goods were exported, subject to the satisfaction of the competent authority. 37. Thus, except for the fact that the request for conversion of the free shipping bill to MEIS shipping bill has been made beyond the time prescribed in Circular No.36/2010Customs dated 23.09.2010, no other objection has been raised on behalf of the respondents. In the opinion of this court, having regard to the peculiar facts of the present case, ....
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....anka as a country for seeking the reward under the MEIS and entire procedure having been simplified, instead of getting the declaration produced for the purpose of the reward, the ticking of N/Y would suffice in case of the EDI. The ticking itself had been made equivalent to such declaration. It is quite clear that for the purpose of the reward, the EDI has been simplified more particularly, by way of the Public Notice No.9 of 2015 dated 16.05.2016 and the marking of tick in pursuance of the earlier Public Notice No.47 dated 08.12.2015 had been treated as a declaration of intent in case of EDI shipping bills. 14. What we notice is that in case of Messrs Gokul Overseas (supra) even the conversion has been permitted by the Court, whereas in the instant case, it is only the question of the EDI bills where inadvertently instead of 'Yes' the ticking was on 'N'. As provided in case of Pasha International vs. Commissioner of Customs (supra) by Madras High Court, this has to be construed as pure and simple mistake on the part of the exporter, when otherwise the respondent has not questioned any of the shipping bills and it is only because the declaration of intent on the....
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....against each item is mandatory and it would be sufficient to declare the intent to claim the reward under the Scheme and if the exporter does not intent to claim the benefit of reward under Chapter 3 of FTP exporter, it would need to tick "N". Admittedly, the port had been converted in EDI port, ticking as "N" according to the petitioner was because of technical glitch and according to the respondent, wherever he had ticked "Y", the benefits is to be made available whereas in those matters where it has ticked "N" obviously they shall need to follow the procedure and the petitioner was not getting the benefits of reward of MEIS claim. 15. The decision of this Court in case of M/s. Raj and Company would squarely cover the issue so far ticking of these EDI shipping bills are concerned. Moreover, the Court cannot be oblivious of the fact that it was a time when software for online filing was merely introduced after converting port into EDI port and therefore, not only there is possibility of the technical glitch, but, the person in whose benefits this had been done also, may not be aware of the procedure and the manner of operation, which may have resulted into depending on some other....