TMI Blog2021 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... Even the letters addressed by the respondents in August 2018, asking to remove the deficiency, did not specify that the writ-applicant would have to seek amendment under Section 149 of the Customs Act, 1962 - the writ-applicant cannot be said to have delayed, when the issue, whether or not the declaration was required prior to 1.6.2015 was under consideration by the authorities and when the authorities themselves have never asked the writ-applicant to amend the shipping bills under Section 149 of the Customs Act, 1962, and have only asked to remove the defect and that too as late as in August 2018. 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 - 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. It would be extremely unfair and unjust not to extend the benefits of the MEIS to the writapplicant on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utch. The writ-applicant is eligible to get the benefits under the MEIS scheme in view of its exports being that of a notified product to the notified countries. The writ-applicant has been exporting Insoluble Sulphur since 1995, and prior to the MEIS scheme, the writ-applicant was availing the export benefits under the Focus Market Scheme of the erstwhile FTP in respect of the Insoluble Sulphur exports. Moreover, even under the MEIS scheme, the writ-applicant has received export benefits in respect of the exports made by it post June 2015. The issue which arises in the present writapplication pertains only to the period between 1.4.2015 and 31.3.2015. (b) During the period between 1.4.2015 and 31.5.2015, the writ-applicant had exported certain quantities of Insoluble Sulphur from the Mundra Port (a non-EDI port) through various shipping bills. Since the exports were of a notified product and to the notified countries, the writ-applicant was entitled to the benefits under the MEIS scheme. The writ-applicant s shipping bills bear the endorsement of the authorities of having examined the goods and supervised the stuffing. However, the aforesaid shipping bills did not contain th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued in this regard. (e) The writ-applicant is aware that its claim in respect to the balance applications was not being processed since the necessary clarification as to whether such non-EDI shipping bills prior to 1.6.2015 were eligible for the benefits under the MEIS scheme or not, was not issued by the DGFT. One such letter dated 3.8.2016 was issued by the Office of the Development Commissioner with regard to the application bearing File No.37/21/090/80077/AM17, categorically stating that the claim was kept pending till the DGFT clarified the matter. (f) On or around 13.7.2016, during an interactive session with the DGFT arranged by the Federation of Indian Chambers of Commerce and Industry (FICCI), the writ-applicant made a representation to the DGFT in this regard and also provided all the relevant documents. Thereafter, the writ-applicant also addressed an email dated 22.7.2016 to the FICCI providing the relevant documents, explaining its case in detail and requesting that the matter be taken up with the DGFT. Thereafter, on 19.9.2016, the writ-applicant also filed its grievance on the on- line portal of the DGFT. However, the writ-applicant got no response from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters, which were addressed to the old office, came to be delivered to the writ-applicant in October 2018. Immediately thereupon, the writ-applicant addressed three letters in respect of the aforesaid three applications, categorically stating that it intended to claim the rewards under the MEIS and was hereby removing the defect in the shipping bills and requesting that its letter be treated as a formal declaration of the intent. However, nothing further was heard from any of the authorities despite repeated follow up and inquiries by the writapplicant at the local level as well as the New Delhi and the writapplicant was merely told that the matter was under consideration. (l) In such circumstances, without prejudice to its rights and contentions, the writ-applicant also filed an application seeking permission/authorisation to amend the shipping bills (Annexure-G) under Section 149 of the Customs Act, 1962, by permitting the following declaration to be inserted on the shipping bills: We intend to claim rewards under Merchandise Exports from India Scheme (MEIS). (m) The writ-applicant also enclosed the self-certified copies of all the documentary evidence whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt shipping bills and electronic Bank Realization Certificate (eBRC) are required to be linked to such application. (c) Chapter 3 of the Handbook of Procedures, when issued on 1.4.2015, contained the following paragraph : 3.14(a) Export shipments filed under all categories if 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). Such declaration shall be required even for export shipments, under any of the schemes of Chapter 4 (including drawback) Chapter 5 or Chapter 6 of FTP. In the case of shipping bills (other than free shipping bills), such declaration of intent shall be mandatory with effect from 1st June 2015. 5. The aforesaid is merely a procedural provision requiring the aforesaid declaration to be made in the shipping bills. This requirement of declaration on the shipping bill appears to have been introduced only for the purpose of internal convenience of the authorities, i.e. for the purpose of internal communication/ transmission of shipping bills containing such declaration from the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had exported goods through the EDI ports. However, similar relief was arbitrarily not provided to the exporters who had exported the goods through the non-EDI ports. Subsequently, a further public notice bearing No.47/2015-20 dated 8.12.2015 was also issued by the DGFT, extending such relief to the exporters who had exported through the EDI-ports during the period between 1.6.2015 and 30.9.2015, but had inadvertently ticked N in the rewards item box. However, similar relief was arbitrarily not provided to the exporters who had exported the goods through the non-EDI ports. Thereafter, another public notice bearing No.09/2015-20 dated 16.5.2016 came to be issued, inter alia, stating that in the case of the EDI shipping bills, it was sufficient to merely tick Y in the rewards column of the shipping bills against each item in order to declare the intent to claim the benefits under the MEIS, whereas in respect of the non-EDI shipping bills, such declaration would have to be stated on the shipping bills. Thus, the authorities have, time and again, provided much relaxation/concessions with regard to the declaration under paragraph 3.14 of the Handbook of Procedures to the exporters wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the EDI ports. Therefore, even the authorities have not treated this procedural requirement as mandatory or its non-compliance as fatal. It is extremely unreasonable, arbitrary, irrational, discriminatory and highhanded to not grant relaxation/waiver in case of exports made from non-EDI ports. 12. She would submit that pursuant to the letters addressed by the authorities in August 2018 asking the writ-applicant to remove the defect, the writ-applicant had addressed letters dated 31.10.2018 categorically declaring its intention to claim rewards under the MEIS and removing the defect in the shipping bills and requesting that its letter be treated as formal declaration of the intent. The writ-applicant also sought amendment of its shipping bills under Section 149 of the Customs Act, 1962 so as to mention the declaration of intent as required by Clause 3.14 of the Handbook of Procedures, which would cure the defect. 13. Ms.Thakore would submit that the writ-applicant s amendment application seeking to amend the shipping bills by inserting the requisite declaration can cure the defect and ought to have been considered and allowed. The Circular No.36/2010 dated 23.9.2010, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question were during the period between 1.4.2015 and 31.5.2015, at which point of time, there was no provision in the said rule 46 for examination of goods where the MEIS benefits are claimed; (v) the respondents themselves asked the writ-applicant to remove the defect (i.e. lack of declaration) vide their letters issued in August 2018 and, therefore, the respondents were ready to allow the writapplicant s claim despite the said declaration not having been there on the shipping bills at the relevant time. 15. Ms.Thakore would further submit that in identical cases, viz. (i) Bombardier Transportation India Pvt. Ltd. vs. Directorate General of Foreign Trade, 2021 (3) TMI 9, (ii) Judgment dated 8.2.2021 in the case of M/s. Raj Co. vs. UOI, and (iii) M/s. Gokul Overseas vs. UOI, (SCA No.7500 of 2019 decided on 21.1.2020), this Court has allowed the writ-application and directed the authorities to allow the MEIS benefits/permit the writ-applicant to convert the shipping bills in question from the free shipping bills to the MEIS shipping bills. These decisions squarely covers the present matter. That apart, even the Delhi High Court, in the case of Kedia Agencies vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are duty bound to duly pass all the shipping bills before any goods can be exported; the authorities are required to ascertain whether the goods are prohibited for export before permitting the clearance of any goods for export; the authorities are required to issue entry outwards to the vessels carrying the export goods before the vessels can be loaded; the authorities are required to issue a written order permitting the vessel to leave the port after all the procedures are duly completed. Therefore, it is not correct to say that no verification is undertaken at the time of the export. 20. The respondents seek to rely upon the newly introduced Rule 46(1)(c) of the SEZ Rules in order to contend that there is a specific provision for examining the goods covered by the MEIS Scheme. However, this contention is completely misplaced since this provision was introduced vide M.C. I. (D.C.) Notification GSR No.909(E) dated 19.9.2018, whereas the exports in question were much prior thereto (i.e. during the period between 1.4.2015 and 31.5.2015), at that point of time, there was no separate provision in the said Rule 46 for examination of the goods where the MEIS benefits are claimed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 its applications, which were later suspended while awaiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 writapplicant 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 declaration was mandatory prior to 1.6.2015 as is evident from the following : (a) Public Notice No. 40/2015-20 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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