TMI Blog2022 (4) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in seeking the benefit is also explained? - whether this Court must interfere under Article 226 of the Constitution of India or direct the petitioner to approach DGFT? - HELD THAT:- This Court must opine that if inadvertent error is the premise in which the Courts have directed DGFT to extend MESI reward where option N is chosen but with the declaration to avail benefit in the case of Non-EDI shipping bills, the similar benefit to an exporter operating under EDI shipping bills cannot be denied only because a declaration of the intent to avail the benefit is not made. This would be especially so if it is uncontested that an exporter under the EDI shipping bills did not have the option of making the declaration other than in choosing Y over N to the intent to avail the MEIS benefit under the EDI mode. There would be no reasonable justification to sustain this classification. Therefore, this Court is not persuaded to opine that an exporter operating under EDI shipping bills would not be entitled for the MEIS benefit if there is an inadvertent error in choosing the option. Further, it undisputed that the petitioner, but for the error in making a choice of entering N ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application is filed beyond the period of three [3] years, the Joint Commissioner of Customs, ICD, Whitefield has rejected another set of the petitioner s application for correction of the shipping bills by the order dated 28.10.2020. The petitioner has called in question both these orders before the competent Appellate Authority and these appeals are pending consideration. 3. However, the petitioner, in the light of the observation in the aforesaid Joint Commissioner s order dated 28.10.2020, has simultaneously approached the Policy Relaxation Committee under the Director General of Foreign Trade (the first respondent is hereafter referred to as PRC - DGFT) for allowing MEIS benefit. The petitioner s request is considered by PRC on 26.10.2021 and is rejected by the decision, which reads as under: The Committee having discussed the case at length observed that conversion from N to Y as well as reflection of such manual amendments in the automated system is not possible. Accordingly, it found no merit in it and hence decided to reject the request of the firm. Hence, the petitioner has called in question both the rejection of the applications by the Custom aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner has not established exceptional circumstance to justify interference under Article 226 of the Constitution of India when an alternative remedy is available. 8. Sri. Jeevan J Neeralgi, the learned Central Government Counsel for the Custom Department/its Authorities, does not dispute that the petitioner s appeal as against the orders dated 22.10.2020 and 28.10.2020 are pending consideration and he also does not dispute that the petitioner has approached PRC - DGFT after the observation in the order dated 28.10.2020 that the petitioner must approach PRC DGFT if there is any error in exercising the choice. Sri. Jeevan J Neeralgi submits that the petitioner s transactions on EDI is between years 2015 and 2018 and the applications before the Customs Authorities under Section 149 of the Customs Act 1962 for correction of the shipping bill is filed only in the year 2019. The petitioner as such, should have sufficiently explained the delay but the same has not been explained. 9. In rejoinder, Sri. V.Raghuraman submits that the question of delay must be examined in the light of the undisputed fact that the petitioner bonafide first tried to resolve the difficulty approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing 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. 11. It is undisputed that this Court and the other Courts have granted benefits to certain exporters directing the DGFT to extend the benefit of the MEIS reward where an exporter, transacting under the Non- EDI Shipping Bills, had chosen N over Y but has declared the intent to avail remedy under MEIS on the ground of inadvertent error. It is also undisputed that the EDI Shipping Bills do not provide for a separate declaration that the exporter intends to avail the MEIS benefit as is provided for Non-EDI Shipping Bills. 12. In the light of the rival submissions, the question for consideration would be: whether the petitioner, who relies on EDI Shipping Bills, must be denied the MEIS benefit if inadvertence is established and the delay in seeking the benefit is also explained. This would be in addition to the question: whether this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T under the relevant HoP. However, mere existence of an alternative remedy cannot be a reason for refusal to exercise the jurisdiction under Article 226 of the Constitution of India under all circumstances. This Court has opined that refund must be allowed to the petitioner because inadvertence is established and that the delay is sufficiently explained. As such, the ground for exercise of jurisdiction under Article under 226 of the Constitution of India is established. For the foregoing, the following: ORDER The writ petition is allowed quashing the decision dated 26.10.2021 by the Policy Relaxation Committee under the Director General of Foreign Trade (the first respondent) and observing that insofar as the orders dated 22.10.2020 and 28.10.2020 (Annexures B and C) by the Deputy Commissioner [Exports], Airport and Air Cargo, Commissionerate and the Joint Commissioner of Customs, ICD, Whitefield must yield and cannot be a reason to refuse the MESI benefits to the petitioner. It is declared that the petitioner would be entitled for the MESI benefits but subject to the condition that the petitioner shall furnish, within a period of eight [8] weeks from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
