TMI Blog2021 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case are identical to the facts of Pasha International [ 2019 (2) TMI 1187 - MADRAS HIGH COURT ] decided by the Madras High Court and there are no reason as to why the petitioner herein should not be extended the benefit under MEIS considering that the only lapse on the part of the petitioner was that it had inadvertently mentioned in the reward column N (for No) instead of Y (for Yes). This is a procedural defect and is curable considering the fundamental objective of the scheme under Chapter 3 of the FTP 2015-20. The basic objective of the Exports from India Schemes is to provide reward to the exporters and to promote manufacture and export of notified goods / products to notified markets. Once this is done, the party is entitled and eligible to claim its reward - 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. Such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased 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 Exports from India Scheme to the petitioner; (c) For interim and ad-interim reliefs in terms of prayer clause (a) to clause (b); (d) For costs of this Petition; (e) For such and other reliefs as the nature and circumstances of the case may required. 3. Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts as pleaded:- 3.1. Petitioner is a private limited company situated in Santacruz Electronics Export Processing Zone (for short SEEPZ ), a Special Economic Zone in Mumbai and engaged in the manufacture and export of electronic motors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 10.05.2018 respondent No. 4 rejected the petitioner's application for amending one such shipping bill No. 4013543 under the provisions of section 149 of the Customs Act, 1962. 3.9. Petitioner filed a second representation dated 16.10.2018 before respondent No.4 with respect to denial of benefit under MEIS due to the difficulties faced by the petitioner and sought leave to carry out amendment in the shipping bills under the provisions of section 149 of the Customs Act, 1962 (for short the Customs Act ). 3.10. Petitioner preferred appeal before the Commissioner of Customs (Appeals) to challenge the order dated 10.05.2018. By order dated 12.02.2019, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 required to specifically declare on the shipping bills We intend to claim reward under MEIS in order to claim rewards under MEIS. He submitted that in the present case, due to an inadvertent mistake on the part of the petitioner, instead of marking Y (for Yes) in the reward column of the shipping bills, petitioner had marked N (for No) thereby leading to denial of benefit to the petitioner. This mistake on the part of the petitioner has led to denial of benefit due to the petitioner. He submitted that in respect of some shipping bills though the benefit is not claimed by the petitioner, yet it is reflected in the system portal of the DGFT that MEIS benefit towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 claimed by the petitioner in the prayer clause i.e paragraph 14 of the petition. He submitted that the reliefs prayed for by the petitioner are not specific but vague and insufficient and as such, the same cannot be granted. 6.1. He has referred to the affidavit in reply dated 29.01.2020 filed on behalf of respondent Nos. 1 and 4 wherein it is contended that the petitioner's application for claiming reward under MEIS was declined due to absence of declaration of intent to claim MEIS benefit in the respective shipping bills; while applying online for claiming MEIS benefit petitioner chose the Non-EDI ports of export being SEZ and marked N (for No) in the column of declaration of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which are of substantive character are required to be distinguished from those which are merely procedural and technical in nature. He asserted that once the petitioner had fulfilled the eligibility conditions for reward, even if there was a technical or procedural infraction while claiming the reward, the same was required to be disregarded. Paragraph 11 of the judgment reads thus:- 11. We have given our careful consideration to these submissions. We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. In Kedarnath's case, the question for consideration was whether the requirement of the declaration under the proviso to Sec. 5(2)(a)( ii) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain 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 of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid. (Emphasis supplied ) Such is not the scope or intendment of the provisions concerned here. The main exemption is under the 1969 notification. The subsequent notification which contain condition of prior-permission clearly envisages a procedure to give effect to the exemption. A distinction between the provisions of statute which are of substantive character and were built-in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. What we have here is a pure technicalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicate 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 nature and incorporated various export friendly innovations and simplifications. These included simplifications merger of reward schemes, introducing new schemes for promotion of merchandise and services exports, incentivising e-commerce exports, encouraging procurement of capital goods from indigenous manufactures under the EPCG scheme etc. 9.1. Chapter 3 relates to Exports from India Schemes. In so far as MEIS is concerned, the relevant provisions are contained in clauses 3.00 to 3.06 which read thus: 3.00 Objective The objective of schemes under this chapter is to provide rewards to exporters to offset infrastructural inefficiencies and associated costs. 3.01 Exports from India Schemes Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) Exports made by units in FTWZ 9.2. Public Notice No. 47/2015-20 dated 08.12.2015 issued by the Directorate General of Foreign Trade sets out the procedure for claiming reward under MEIS and is relevant for the present case and reads thus:- PUBLIC NOTICE No.47/2015-20 Dated: 8 th December, 2015 Subject: Declaration of intent under Merchandise Exports from India Scheme (MEIS)-reg. DGFT by Public Notice No. 40 dated 09th October 2015, had prescribed a procedure to be followed for claiming rewards under MEIS where exports had been made through EDI generated shipping bills between 01.04.2015 to 31.05.2015 and the exporter had inadvertently marked N in the reward item box and wished to seek MEIS benefit. 2. Subsequently representations have been received from exporters and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Trade Email: dgft@nic.in (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 EDI generated Shipping Bills by Exporters would be treated as declaration of intent to claim MEIS benefit In exercise of powers conferred under paragraph 2.04 of the Foreign Trade Policy 2015-20, Director General of Foreign Trade, hereby makes the following amendments in Paragraph 3.14(a) of the Handbook of Procedures 2015-20: Existing Paragraph Paragraph 3.14: Declaration of Intent on shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using e-Commerce (a) Export shipments filed under all categories of the Shipping Bills would need the following declaration on the Shipping Bills in order to be eligible for claiming rewards under MEIS: We intend to claim rewards under Merchandise Exports From India Scheme (MEIS) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nline, 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 respondents there is no other challenge to the petitioner's case on merit. 11. We have perused the orders and judgments passed by the High Courts of Kerala as well as Madras which have been referred to and relied upon by the petitioner. Identical questions had arisen in the said cases wherein the writ petitioners had filed shipping bills for export of manufactured goods. The writ petitioners therein actually intended to claim benefit under MEIS but while filing the shipping bills, inadvertently opted for N (for No) instead of Y (for Yes) in the column of declaration of intent. Reliefs claimed in the said petitions before the High Courts of Kerala and Madras were for seeking a direction to the DGFT to amend the shipping bills filed by the petitioners to enable the petitioners to avail benefit under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered 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 such cases. 13. Though we are not happy with the manner in which the reliefs [prayer clauses (a) and (b)] in paragraph No. 14 have been drafted in the present petition, inter alia, seeking directions to the respondents to guide the petitioner by communicating the exact modification required and in the ordinary course would have declined the relief; however looking into the facts and circumstances of the present case coupled with the inherent objective of the Exports from India Scheme, we have considered the petitioner's case. The objective of the MEIS scheme is to provide rewards to exporters to offest infrastructural inefficiencies and associated costs. In other words, the objective of Merchandise Exports from India Scheme (MEIS) is to promote manufacture and export of notified goods / products to notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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