TaxTMI 
TaxTMI 
2024 (1) TMI 1334
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....) that this Hon'ble Court may direct the Respondents to allow modification in the online system to enable the Petitioners to correct the technical error by allowing selection table "RODTEPY" for shipping bills to be under reward scheme and process the application to grant export incentives under RoDTEP to the Petitioner or alternatively direct Respondent No. 4 and 5 to recall and amend the 4 Shipping Bills granting the RoDTEP benefit. (c) that this Hon'ble Court may direct the Respondents to improve the software/system so as to enable the Petitioners or similarly placed assessed to upload the manually amended shipping bill on the portal either themselves or through the officers of the Respondents to avail the export incentives admissible in law." 2. Brief facts of the case are as under:- 2.1 The petitioner, having its Plant at C-21, Lawrence Road, Industrial Area, Delhi, 110035 and head office at 4068-69, Naya Bazar, Delhi - 110006, is a partnership firm. The Petitioner is holding Importer-Exporter Code No. 0509076807. In regular course of business, the Petitioners exported "India Origin Moong Whole" (hereinafter referred as export goods) to the respective fo....
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.... Code RoDTEP Reward 1 3823233 13.08.2021 INMUN1 Filed without selecting yes to the claim availment of RoDTEP (1,23,92,856*4%=4,95,714/-) 2 5451943 21.10.2021 INMUN1 Same as above (2,12,23,200*4% = 8,48,928/-) 3 5671001 29.10.2021 INMUN1 Same as above (2,17,70,700*4%=8,68,428/-) 4 5853436 08.11.2021 INMUN1 Same as above (1,19,63,700*4%=4,78,548/-) Total Rs. 26,91,618/- 2.8 In all the aforementioned shipping bills, filed for export of goods, the Petitioners customs house agent (CHA) processed the shipping bills and claimed the benefit of Duty Drawback, however, due to oversight of Petitioners CHA, shipping bill was further processed with default option 'NO' without selecting 'YES' for making exports under claim of RoDTEP benefit. Result of this being that Exports are considered only for the benefit of duty drawback and not considered for benefit of RoDTEP though otherwise Petitioners are entitled for the same. 2.9 On realizing this technical error, the CHA of the Petitioners first approached Respondent No. 4 vide letter dated 21.11.2021 and requested them to amend the abovementioned 4 shipping ....
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.... for disallowing RoDTEP benefit was passed by the respondents nor the benefit of the RoDTEP was granted by the respondents. Having received no response from any of the Respondents, the Petitioners were left with no other option but to file the present Petition. 2.16 Further, it is pertinent to note that the Petitioners have filed 2 other shipping bills having SB No. 6358310 and 6357947 dated 29.11.2021 for export of same goods to the same consignee and claimed the benefit of RoDTEP which was duly granted to the Petitioners. Therefore, the same clarifies that the Petitioners are eligible for the benefit of RoDTEP scheme. 2.17 Aggrieved by the letter issued by the office of Respondent No. 3 vide F.No.CUS/DBK/MISC/403/2021-DBK-O/o Pr. Commr-Cus-Mundra/7138 having DIN No. 20211271M000003833AB dated 15.12.2021 and non-response to the subsequent letters, the petitioners have approached this Court by way of the present petition. 3. Learned advocate Mr.Nainavati for the petitioner submitted that the respondent authorities could not have rejected the benefit of RoDTEP scheme on the ground that the system is not designed/capable to amend the shipping bills online which have otherwis....
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....designed to amend the shipping bills online which have been amended manually by the custom department. 6. It was, therefore, submitted that similar issue was raised before this Court in the case of Gokul Overseas vs. Union of India, reported in 2023 73 LT 49 Guj. and in facts of the said case, this Court permitted the benefit of MEI scheme to the assessee-petitioner for the exports by converting of the free shipping bills to MEIS shipping bills by directing the respondent authority to accept the request for conversion of the free shipping bills to MEIS shipping bills beyond the time prescribed as per circular no. 36/2010 dated 23.09.2010. 7. Reliance was also placed by the learned advocate Mr.Nainavati for the petitioner on the following decisions:- 1. the Hon'ble Madras High Court in the case of Pasha International vs. Commissioner of Customs, Tuticorin, reported in 2019 (365) E.L.T. 669 (Mad.) 2. the Hon'ble Kerala High Court in the case of Anu Cahews vs. Commissioner of Customs, Cochin, reported in 2020 (371) E.L.T. 241(Ker.) 3. the Gujarat High Court in the case of M/s.Jindal Saw Ltd. vs. The Chief Commissioner of Customs, reported in 2022 (1) T....
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....he conditions prescribed in the notification No. 76/21 dated 23.09.2021. Reference was made to condition no.13 of Table-1 of the notification, which provides for export categories of sectors ineligible for duty credit, whereby the export credit is not made available for goods for which claim of duty credit is not filed shipping bill or bill of export in the custom automated system. It was, therefore, submitted that the petitioner is not filed the shipping bills on custom automated system making declaration for availing the benefit of RoDTEP scheme and therefore, the same cannot be now permitted to be amended by the custom automated system. It was, therefore, submitted that no interference may be made while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 12. Having heard learned advocates for the respective parties and considering the facts of the case, it is not in dispute that the petitioner is eligible for the export benefit under the RoDTEP scheme in law and as per the notification of the scheme. 13. For export of goods around India to customer situated outside India, the exports have to file shipping bills in two ways (a) filing of sh....
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....Shipping Bill. In case of any query, they should file a reply to the query through the Service Centre. (e) Verification of Goods: During examination of the goods at the docks, the exporter/CHA has to present the Check List along with all original documents such as invoice, packing list, etc. to the Customs Officer. The Appraiser issues 'Let Export' order if everything is found to be in order after examination of the goods and scrutiny of the documents. (f) Issue of Shipping Bill: After the "Let Export" order is given, the printout of the shipping bill is generated. The examination report printed on the shipping bill is to be signed by the Appraiser, Examiner as well as the customs house agent/exporter. The name and licence no. of the customs house agent should be clearly mentioned below his signature. Export general manifest (EGM) has to be filed by shipping carrier of goods, once after 'export' takes place To avail the scheme of RoDTEP, as per the procedure exporter is required to follow the following procedure: a. the exporter or CHA shall make a claim for RoDTEP in the shipping bill by making a declaration. b. Once EGM is fi....
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....l.), on which reliance has been placed by the learned advocate for the petitioner, wherein the question that arose for consideration was: "Did the CESTAT fall into error in upholding the denial of the petitioner's claim for amendment 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 C/SCA/7500/2019 JUDGMENT 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 pro....
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.... in Circular No. 36/2010-Customs 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, the omission to file 'declaration of intent' when all other relevant material is available, is not fatal to the petitioner's case. As in the case of Kedia (Agencies) Pvt. Ltd. v. Commissioner of Customs (supra), in the facts of the present case also, in all other respects, that is, as to whether the goods conform to the description in the shipping documents and the value, etc. continues to be ascertainable because the concerned bills, invoices and other shipping documents are available with the customs authorities. The respondents are, therefore, not justified in turning down the request to convert the shipping bills of the petitioner from free to MEIS and thereby depriving the petitioner of the benefits under the MEIS in respect of exports made under such shipping bills." 16. This Court in the case of Oriental Carbon And Chemicals Limited vs. Union Of India, reported in 2021 (377) E.L.T 850 (Guj) has held as under:- 21. Section 149 of the Customs Act, 1962, ....
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....e fixation of the time limit by way of rules or regulations. Therefore, no time limit can be read into the said provision nor can it be introduced by way of a circular. It is well-settled that a subordinate legislation cannot travel beyond the parent statute or impose a limitation or restriction not found in the parent statute. 25. This Court, in the case of Principal Commissioner of Customs vs. M/s. Lykis Limited, 2021 (2) TMI 261, has upheld the Tribunal's judgment holding that when no time limit is prescribed in Section 149 of the Customs Act, 1962, no such time limit can be fixed by way of a circular. 26. In the case of M/s. Mahalaxmi Rubtech vs. UOI, (SCA No.21636 of2019, decided on 2.3.2021), this Court upheld that the Circular is ultra vires Articles 14, 19 (1) (g) of the Constitution and Section 149 of the Customs Act, 1962. Therefore, the said Circular cannot be relied upon. 27. In the present case, the authorities had themselves sought clarification from the DGFT as to whether such declaration was mandatory prior to 1.6.2015 and were awaiting such clarification. The authorities had even issued three scrips to the writ-applicant against six of it....
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....ould be unreasonable and unfair. 31. There is no dispute that the writ-applicant is eligible to claim the benefits under the MEIS since it has admittedly exported the notified goods to the notified countries as per the scheme of the MEIS. 32. The writ-applicant has been exporting the very same goods prior to the Foreign Trade Policy, 2015-20, and claiming the benefits under the then extant Focus Market Scheme (FMS) and has subsequently also exported the very same goods and claimed the benefits under the MEIS scheme. 33. The only lapse is with regard to the inadvertent nonmention of the declaration of intent as per Clause 3.14 of the Handbook of Procedures during the period between 1.4.2015 and 31.3.2015, i.e. during the initial period of the FTP, 2015-20. 34. The writ-applicant's shipping bills were non-EDI only because the Mundra Port was not an EDI port. 35. This lapse being a technical or a procedural lapse, the writ-applicant should not be denied substantive benefits, as held by this Court in the case of Bombardier Transportation India Pvt. Ltd. (supra). 36. The authorities themselves were not sure whether the declaratio....
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....arried forward of the CENVAT credit manually. 19. This Court in case of M/s. Jindal Saw Ltd. (supra) has held that software has its own limitation and it does not permit even after the manual correction of the shipping bills, the benefit to flow of MEIS Scheme as it does not recognize the manual correction, the petitioner is deprived of such benefits as no technicality can mark the rights of the parties, which otherwise accrued under the substantive law. This Court has held as under:- "14. Having heard both the sides and also on a carefully considering the chronology of events, we notice that it is a genuine mistake on the part of the petitioner which has led the petitioner approaching this Court for prayer of permitting the bill manually. We notice that the respondent Nos.1 and 2 had permitted the manual amendment of shipping bill in question being the shipping bill bearing No.5561585 dated 14.06.2018 while filing shipping bill online in EDI system of the customs inadvertently systems had got been corrected value of goods exported as has been noted by the PRC Committee in its meeting. A representation made had weighed with the said Committee. The Customs, Mundra had as....
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....ld the mandate of Article 19 (1) (g) of the Constitution of India. It was further held that Article 300A which provides that no person shall be deprived of property save by authority of law while right to the property is no longer a fundamental right, but it is still a constitutional right and CENVAT credit earned under the erstwhile Central Excise Law is the property of the writ-applicants and it cannot be appropriated for merely failing to file a declaration in the absence of Law in this respect. Accordingly, respondent authorities were directed to permit the petitioner to allow the filing of declaration in form GST TRAN-1 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140 (3) of the CGST Act. 21. This Court in case of M/s Shree Renuka Sugars Ltd vs. Union Of India, reported in 2023 (4) TMI 789 in similar facts of granting benefit under RoDTEP scheme has issued the following directions:- "5. As the controversy unfolds as above, the court is of the view that the following directions would serve the ends of justice. Accordingly it is provided that, (i) The ....