TMI Blog2021 (2) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... vided in exercise of the powers conferred under para 2.04 of the FTP 2015 -20, the schedule of country groups and the code wise list of product with reward rates under Appendix 3B as pointed out to us that Sri Lanka is not one of those country. It is not in dispute that by way of 73 shipping 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. In the instant case, there is no doubt with regard to the exports having been made under the FTP 2015 -20 where, initially, Sri Lanka was not one of the countries where such reward was available on export to the said country. The petitioner has already exported its product 'vitrified tiles' to Sri Lanka and 73 shipping bills have also been produced before the respondent authorities. What has been pleaded all through out by the petitioner is of lack of knowledge of subsequent publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought by the petitioner to set aside the order of respondent No.3 bearing No.VIII/48 47/EXP/MEIS/CHM/19 20 dated 10.06.2019. 2. The facts bereft of details are as follows: 2.1 The petitioner regularly exports in his capacity of Merchant Exporter and is exporting various items purchased from different manufactures and traders. The scheme was introduced being the Merchandise Exports from India Scheme ( MEIS for short). It specified the entitlement and eligibility of various groups and also the benefits of the percentage. In terms of the Public Notice No.2 of 2015 -20 dated 01.04.2015, Sri Lanka was placed in group C. Although the benefit of MEIS was not made available to the product of vitrified tiles if exported to Sri Lanka. 2.2 It is averred by the petitioner that a Public Notice had been amended on 04.05.2016 being the Public Notice No.6 of 2015 -20 and MEIS scheme was extended to the export made to Sri Lanka at the rate of 2% interest. The interest was further amended on 22.09.2016 vide Public Notice No.32 of 2015 -20 and the rate of percentage was enhanced to 3%. According to the petitioner, both the amendments of 04.05.2016 22.09.2016 in Public Notices did not come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/15 20 issued by the DGFT also can be applied; however, the custom authority needs to prescribe to learn to follow the procedure. The Public Notices would permit the benefits to those exports which had been made from 01.04.2015 to 30.09.2015; whereas in the instant case, the exports have been made from 12.05.2016 to 05.01.2017 which is beyond the time limits given by the DGFT. The procedure of declaration of intent as provided in para 3.14, according to the respondent of the Handbook of Procedures of Foreign Trade Policy ('FTP' for short) 2015 -20 for Electronic Data Inter change ( EDI for short) has been simplified. The marking of the tick done in pursuance of the earlier Public Notice No.47 dated 08.12.2015 is to be treated as declaration of intent in case of EDI shipping bills. It is, therefore, contended that the marking to the tick in appropriate box since was mandatory even in EDI shipping bills, it is clear that from 30.09.2015, once the marking is mentioned by the exporter, the same is to be treated final and no amendment can be entertained. So far as section 149 of the Customs Act, 1962 is concerned, it is contended that the amendment can be made on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inuous basis would be unaware of the benefits declared by way of the Public Notice. What all CBIC has done is to follow the DGFT and therefore, no indulgence needs to be shown in this case. He has also attempted to distinguish the decisions which are sought to be relied on facts. 7. 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 wise list of product with reward rates under Appendix 3B as pointed out to us that Sri Lanka is not one of those country. It is not in dispute that by way of 73 shipping bills, export has been carried o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 each items, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the policy which needed to consider the said certificate to serve the petitioner's purpose. The Court directed the 3rd respondent to issue necessary 'No Objection Certificate&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred 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 2015-20 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 2015-20. Para 3.14 thereof provides for the procedure for Declaration of Intent on EDI and Non-EDI 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 2015-20, 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 (2015-20), vide Public Notice 40/2015-2020 dated 9th October,2015, it has been provided thus: 2. As per para 3.14 of Hand Book of Procedure to FTP (2015-20), 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 tick mark Y in case they intend to claim benefits under MEIS and N in case they do not intend to claim benefit unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 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.36/2010-Customs 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 applications were partly allowed and twenty five shipping bills were disputed. Vide letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own 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.36/2010-Customs 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 consideration was: Did the CESTAT fall into error in upholding the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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.36/2010-Customs 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.36/2010-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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 said shipping bills for claiming the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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