TMI Blog2022 (1) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... er the aforesaid two clauses on the premise that the transaction of the Petitioner is with the FTWZ unit (Siddhartha Logistics Co. Pvt. Ltd.). In the present case, Petitioner has pleaded that the transaction in question for supply of export goods (Single Mode Optical Fibers G642D) is with its foreign overseas buyer (Technocraft Engineering LLC, Dubai, UAE), and that it is on the instructions of the overseas buyer the Petitioner delivered the export goods to the FTWZ unit (Siddhartha Logistics Co. Pvt. Ltd.) in India - it is seen that in Paragraph 3, the reference to the Overseas Buyer is to a company called Ashteck Global FZE , which on scrutiny shows that it is located in Ajman, UAE. There is no reference to Technocraft Engineering LLC, Dubai, UAE in the written propositions and annexures to the Petition, the written propositions as well as the compilation of documents tendered across the bar. Applying the ratio of the decision in JINDAL DRUGS PRIVATE LIMITED VERSUS THE UNION OF INDIA, THE DEPUTY COMMISSIONER OF CUSTOMS, THE ADDITIONAL DIRECTOR GENERAL OF FOREIGN TRADE [ 2021 (7) TMI 1034 - MADRAS HIGH COURT] , in the absence of necessary documentary evidence as alluded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrying on business of manufacturing optical fibres and having its registered office at GAT No. 2347/B, Pune-Nagar Road, Opp. Hotel Parijat Dhabha, Wagholi, Taluka Haveli, District Pune 411 207. 3. By the present Writ Petition, the Petitioner has prayed for the following reliefs: a) that this Hon'ble Court may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari and/or any other appropriate writ, order or direction under Article 226 and Article 227 of the Constitution of India calling for the records and papers of the Petitioner's case and after examining the legality and validity thereof be pleased to quash and set aside the order dated 03.06.2020 passed by the Respondent No.3; b) that this Hon'ble Court be pleased to issue a mandamus or a writ in the nature of mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers and subordinates to forthwith: (i) withdraw and/or cancel impugned order dated 03.06.2020 passed by the Respondent No.3; (ii) allow the Application File Nos: (i) 31/21/090/83127/AM18 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Joint Director General of Foreign Trade for issuance of Duty Credit Scrip under MEIS as envisaged under the FTP 2015-20 in respect of some of the export goods which were delivered to the Overseas Buyer through the FTWZ and were subsequently exported. 5.5. Respondent No. 4 issued Duty Credit Scrip no. 3119015316 dated 28.07.2017 to the Petitioner under which the Petitioner was entitled to import goods / raw materials free of customs duties to the extent of ₹ 10,58,375.00, subject to the conditions specified therein. 5.6. Thereafter, Petitioner made four further applications in October 2017 to the Respondent No. 4 for grant of Duty Credit Scrips under MEIS in respect of the remaining export goods that were delivered to the Overseas Buyer through the FTWZ and which were subsequently exported to Taiwan. The details of the applications are as under: Sr.No. MEIS Application File No. Date of Application Application Amount (Rs.) of Duty Credit claimed 1. File No. 31/21/090/ 83127/AM 18 06.10.2017 13,79,489 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.03.2019 and 15.04.2019, Petitioner requested the Respondent No. 4 to revoke suspension of the IEC License and also reconsider the decision regarding rejection of the applications filed by the Petitioner seeking MEIS benefit. 5.13. Being aggrieved, Petitioner filed Writ Petition no. 6713 of 2019 before this Court challenging the arbitrary, illegal and mala fide exercise of power in suspending the IEC License, being in gross violation of the principles of natural justice and/or otherwise without any authority of law, contrary to the express provisions of the FTP 2015-20 and on other grounds mentioned in the said Writ Petition. 5.14. During pendency of the Writ Petition, the Deputy Director General of Foreign Trade by letter dated 18.07.2019 informed the Petitioner that the Petitioner would not be entitled to benefit under MEIS for the reasons mentioned in said letter. Petitioner therefore amended the Writ Petition and also challenged the letter dated 18.07.2019 issued by the Deputy Director General of Foreign Trade. 5.15. When the said Writ Petition was taken up for hearing, Respondents informed this Court that suspension of the Petitioner's IEC License no. 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the export goods is not covered in the list of ineligible categories under Paragraph 3.06 of the FTP 2015-20. He asserted that there is no privity of contract with the FTWZ unit and therefore Paragraph 3.06 does not apply to the Petitioner's case. 6.4. He has relied on two office memoranda dated 09.05.17 and 24.04.19 issued by the office of the Respondent No. 2 Additional Secretary, SEZ Division, Department of Commerce, Ministry of Commerce and Industry, New Delhi which state that benefits under the MEIS can be granted to DTA goods that are kept in the FTWZ unit and are to be exported. Applying the contents of these memoranda to the Petitioner s transaction, it is pleaded that the Petitioner (a DTA unit) entered into a transaction with its overseas buyer in UAE; received consideration in US Dollors in its Indian bank account; the transaction of delivery and supply of export goods was not with the FTWZ unit but with the Overseas Buyer and hence the Petitioner is eligible to claim MEIS benefit under the extant policy. 6.5. Mr. Paranjape has thereafter referred to a compilation of documents, running into forty-six pages, that has been tendered across the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipped to a place outside India. The Shipping bill for export of duty free goods mention Exporter as M/s Siddhartha Logistics Co. Pvt. Ltd. and there is no mention of the applicant firm i.e. M/s Sunteck Telecommuncations, in these shipping bills. 9. The supplies by M/s Siddhartha Logistics Co. Pvt. Ltd.(FTWZ) can be considered as Exports under FTP provisions, since the goods have been shipped outside India. However, these supplies are exports made by a FTWZ unit (since the exporter mentioned in the documents is M/s Siddhartha Logistics Co. Pvt. Ltd. which is a unit in FTWZ, Sri City). The impugned supplies are exports made by the FTWZ unit i.e. M/s Siddhartha Logistics Co. Pvt. Ltd. However such Exports cannot be considered as an export by the petitioner firm, M/s Sunteck Telecommuncations Pvt Ltd. Such exports are also not eligible, as per the provisions of the para 3.06(vii) of FTP which states Exports made by units in FTWZ as an ineligible category. 7.1. From reading of the above paragraphs, he submits that the shipping bills submitted by the Petitioner for export of duty-free goods mention the name of the exporter as 'Siddhartha Logistics Co. Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Jindal Drugs Private Limited Vs. Union of India and Ors. and Portescap India Pvt. Ltd. Vs. Union of India and Ors. 2021 (7) TMI 1034 - Madras High Court and contented that the facts in issue in the Jindal Drugs case are identical with the facts in the present case and the said decision covers the case of the Petitioner at hand. 8.1. He submits that, in the Jindal Drugs case, MEIS benefit was denied to the Petitioner by the competent authority without ascribing any reason even though the transaction was between a DTA unit (Jindal Drugs Private Limited) and its overseas buyer (Utexam Logistics Ltd., Ireland) through an FTWZ unit (DHL Logistics Pvt. Ltd.). He submits that the Madras High Court, after scrutinizing the entire documentary evidence namely the purchase order, tax invoices, statements of bank realization certificate (BRC) evidencing receipt of consideration in US Dollars in relation to the exports made, shipping bills, etc. came to the conclusion that the export documents were executed by the Petitioner in the said case with its overseas buyer; hence, the Petitioner was found to be entitled to MEIS benefits as the exports were made by the Petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as rewards under MEIS and SEIS. The Duty Credit Scrips and goods imported / domestically procured against them shall be freely transferable. The Duty Credit Scrips can be used for : (i) Payment of Basic Customs Duty and Additional Customs Duty specified under sections 3 (1), 3 (3) and 3 (5) of the Customs Tariff Act, 1975 for import of inputs or goods, including capital goods, as per DoR Notification, except items listed in Appendix 3A. (ii) Payment of Central excise duties on domestic procurement of inputs or goods, (iii) Deleted (iv) Payment of Basic Customs Duty and Additional Customs Duty specified under Sections 3 (1), 3 (3) and 3 (5) of the Customs Tariff Act, 1975 and fee as per paragraph 3.18 of this Policy. Merchandise Exports from India Scheme (MEIS) 3.03 Objective Objective of the Merchandise Exports from India Scheme (MEIS) is to promote the manufacture and export of notified goods/ products. 3.04 Entitlement under MEIS Exports of notified goods/products with ITC[HS] code, to notified markets as listed in Appendix 3B, shall be rewarded under MEIS. Appendix 3B also lists the rate(s) of rewards on various notified pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems, which are prohibited for export under Schedule-2 of Export Policy in ITC (HS) 10.2. Paragraph 3.06 of the FTP 2015-20 refers to exported goods which shall be ineligible for Duty Credit Scrips under MEIS. Clause (vi) of paragraph 3.06 states that SEZ/FTWZ products exported through DTA units shall be ineligible for benefit under MEIS. Similarly clause (xix) states that the exports made by units in FTWZ shall be ineligible for benefit under MEIS. The Competent Authority / Respondents have denied benefit to the Petitioner under the aforesaid two clauses on the premise that the transaction of the Petitioner is with the FTWZ unit (Siddhartha Logistics Co. Pvt. Ltd.). On the other hand, it is the Petitioner's case that its transaction is with its foreign Overseas Buyer and not with the FTWZ unit to which the export goods are delivered. Hence, according to the Petitioner, the aforementioned two clauses do not apply to the case in hand and the Petitioner is eligible for Duty Credit Scrip under MEIS for the exported goods for which the Petitioner has received consideration in US Dollars (foreign exchange). 10.3. Section 2(e) of the FTDR Act, 1992, read with paragraph 9.20 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below: 7. In the regular course of business, the Petitioner supplied Single Mode Optical Fibers G652D - Natural (hereinafter referred to as the exported goods ) to an overseas buyer, Technocraft Engineering LLC, Dubai, UAE (hereinafter referred to as the Overseas Buyer ). As per the instructions of the Overseas Buyer, the Petitioner was required to deliver the export goods to Siddhartha Logistics Co. Pvt. Ltd. (hereinafter referred to as the FTWZ Unit ), a unit located in Free Trade and Warehousing Zone at Sri City Multi-product SEZ/FTWZ, Chittor District, Satyavedu Mandal, Andhra Pradesh. The goods were delivered to the FTWZ Unit under four Bills of Export bearing Nos. 0000004 dated 08.01.2016, 0000016 dated 08.02.2016, 0000027 dated 02.03.2016 and 0000028 dated 03.02.2016. Such supplies are treated as Export of goods in terms of Section 2(m) read with Section 51 of the Special Economic Zone Act, 2005 (hereinafter referred to as the SEZ Act ). 11.1. When the Petition was argued before us, the Petitioner has submitted written propositions (six pages) along with a compilation of documents (forty-six pages). In Paragraph 3 of the written propositions, it is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd.) on behalf of Ashteck Global FZE, Ajman, UAE, as consignor and the name of Success Prime Corporation, Taiwan, as the consignee to whom the export goods are shipped. 11.3. In none of the annexures referred to and relied upon by the Petitioner, nor the above documents, does the name of Technocraft Engineering LLC, Dubai, UAE , appear. Hence, if it is the Petitioner s case that under the transaction with its overseas buyer (Technocraft Engineering LLC, Dubai, UAE), the Petitioner supplied the goods to the FTWZ unit and therefore the Petitioner is eligible for MEIS benefit, then the Petitioner is required to furnish the following documentary evidence to the Competent Authority for seeking benefit under the MEIS Scheme. (i) Bills of Receipt; (ii) Bills of Export of Goods; (iii) Export Invoices; (iv) Authorization/Transaction with the Overseas Buyer to deliver the goods to the FTWZ unit; (v) Statements of Bank Realization (BRC) for the amount received in US Dollars; (vi) Confirmation that the FTWZ unit has neither claimed nor been granted benefit under MEIS in regard to the instant transaction; (vii) Shipping Bills; (viii) Purchase Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Petitioner. Paragraph 11 of the said decision is relevant and is reproduced below: 11. Upon a comparison of the above details contained in the bills of export of goods under which the petitioner has claimed duty drawback, with the bills of the parties to the transaction, I find that the numbers and date tally. It is thus clear that the export documents have been executed by the petitioner. The petitioner also confirms that the FTWZ has neither claimed not been granted any benefit under MEIS Scheme in regard to the instant transactions. If at all such claims had been advanced, they would have been barred under the provisions of 3.06(vii) of the policy note. 11.8. Applying the ratio of the above decision, in the absence of necessary documentary evidence as alluded to hereinabove, the Petitioner cannot claim MEIS benefit merely on the basis of pleadings. If the Petitioner claims that the export goods are delivered to the FTWZ unit and thereafter exported to Taiwan on the instructions of its Overseas Buyer, the burden of proof is on the Petitioner to produce the contractual agreement / authorization / transaction details with the Overseas Buyer to substantiate the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. A similar view has been reiterated by the Apex Court in Larsen Toubro Ltd. Vs. State of Gujarat (1998) 4 SCC 387 : AIR 1998 SC 1608, National Buildings Construction Corpn. Vs. S. Raghunathan (1998) 7 SCC 66 : 1998 SCC (L S) 1770, Ram Narain Arora Vs. Asha Rani (1999) 1 SCC 141, Chitra Kumari Vs. Union of India (2001) 3 SCC 208, State of U.P. v. Chandra Prakash Pandey (2001) 4 SCC 78 : 2001 SCC (L S) 661, Rajasthan Pradesh Vaidya Samiti Vs. Union of India(2010) 12 SCC 609, and Indian Young Lawyers Assn. Vs. State of Kerela (2019) 11 SCC 1. 11.10. In the case at hand, the Petitioner has pleaded in the Petition about its transaction for export of goods with the Overseas Buyer but has not produced a single document evidencing the said transaction / authorization from the Overseas Buyer. 12. In view of absence of documentary evidence, and the findings and discussion hereinabove, the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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