TMI Blog2023 (7) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... e SHIS benefits are for the exports made in the year 2009--10, and the Zero Duty EPCG Authorization is issued in the year 2011--12, there is no violation of the provisions as clarified in Public Notice No.12 dt, 26.7.2013. It is mentioned in Public Notice No.12 dt, 26.7.2013 that if SHIS application is filed for the year 2009--10, Zero Duty EPCG Authorisation cannot be issued to an importer for the year 2010--11. In the present case, the respondent has not availed any Zero Duty EPCG Authorization for the period 2010--11. The Zero Duty EPCG Authorization is for the period 2011--12. Thus, there is no violation of the conditions. The Commissioner has analyzed the entire issue and given detailed discussion. The appeal filed by the department is without merits. Impugned order is sustained - appeal filed by Revenue is dismissed. - HON BLE MS. SULEKHA BEEVI C. S. , MEMBER ( JUDICIAL ) HON BLE MR. VASA SESHAGIRI RAO , MEMBER ( TECHNICAL ) Ms. Anandalakshmi Ganeshram, Superintendent (A.R) For the Appellant Mr. Pulak Saha, Consultant For the Respondent ORDER ORDER : Per Ms. SULEKHA BEEVI, C.S. Brief facts are that a show cause notice was issued conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in future years also]. 5. It is thus argued by the Ld. A.R that prior to 22.06.2012, exemption under Notification No.102/2009--Cus. dated 11.09.2009 was not admissible to an importer who has been issued duty credit scrips under the Status Holder Incentive Scheme as well as the Zero Duty EPCG Authorization Scheme. The benefit of the exemption under notification would be available only after surrendering of the SHIS scrips. 6. In the present case, the respondent has obtained SHIS scrip and Zero Duty EPCG Authorization during the year 2011--12 itself. They have imported capital goods availing the exemption under EPCG authorization vide Notification No.102/2009--Cus. dt. 11.09.2009 as amended by Notification No.42/2012 dt. 22.06.2012. The respondent would be eligible to avail the exemption of the notification only if the SHIS benefit that is unutilized is refunded with applicable interest before availing the zero duty EPCG authorization. In the present case, the SHIS scrip was sold and transferred by the respondent to another firm who utilized it for their imports. The respondent has not refunded the unutilized amount of the SHIS scrip issued to them prior to obtaining zero du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ization has been issued to the applicant by any RA during the year 2011--12 (from 1.4.2011 till 31.3.2012) or 2012--13 (from 1.4.2012 till 31.3.2013) as the case may be. c) In case SHIS Application is filed within the prescribed date (for exports made during 2009--10/2010--11/2011--12 as the case may be, including any supplementary claim under Para 9.4 of HBPv1) and where Zero Duty EPCG Authorisation has been issued to the applicant by any RA during the relevant year (i.e. during 2010--11/2011--12/2012--13 respectively, as the case may be), SHIS application shall be summarily rejected in view of fourth subpara of Para 5.1A of HBPv1 . d) 10. It is submitted by the Ld. Consultant that the show cause notice has been issued under the misconception that SHIS scrips and Zero Duty EPCG Authorization have been issued in the same year. The facts have been clearly discussed by the Commissioner from para 24 onwards. It is argued by the Ld. Consultant that the department has proposed to demand duty denying the benefit of notification alleging that the SHIS scrip was physically received by them in 2011--12 and the EPCG authorization was also issued in the year 2011--12. Actually, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports made during 2009--10/2010--11/2011--12 as the case may be, including any supplementary claim under Para 9.4 of HBP(VI) and where Zero Duty EPCG Authorisation has been issued to the applicant by any RA during the relevant year (i.e. during 2010--11/2011--12/2012--13) respectively, as the case may be) SHIS application shall be summarily rejected in view of fourth sub para of Para 5.1A of HBPv1. 15. From the above it can be seen that if SHIS application is filed for the year 2009--10, Zero Duty EPCG Authorisation cannot be issued to an importer for the year 2010--11. 16. In the present case, the respondent has not availed any Zero Duty EPCG Authorization for the period 2010--11. The Zero Duty EPCG Authorization is for the period 2011--12. Thus, there is no violation of the conditions. The Commissioner has analyzed the entire issue and given detailed discussion. Relevant paragraphs are being worth of reproduction which read as under : 25. The allegation in the show cause noticee is that the noticee applied for SHIS in the year 2010--11 and were issued the scrip in the year 2011--12 and they obtained the EPCG in the year 2011--12 which is not permissible as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm year of issuance has to be viewed from the provisions of the Foreign Trade Policy read with Procedures and public notice No.12 issued by DGFT/RA. The term year of issuance has to be related to the period for which the SHIS vis-- --vis EPCG benefits being availed by an exporter and not physical issue of or application for the licences or scrips since the purpose of such restrictions in the policy is to prevent simultaneous availment of the benefit of the two schemes. Therefore, the interpretation of the condition 2 (4) adopted in the notice that there cannot be any availment of EPCG in the year of issuance of SHIS is not correct keeping in view the policy, it s purpose, procedures and the clarifications issued in this regard. 38.3 Given the facts of the case and the purposive interpretation of the Notifications governing the SHIS and the EPCG schemes and appreciating that there was no simultaneous availment of the licences/scrips issued under these two schemes, for which categorical clarifications have been issued by the O/o the JDGFT which is based on the PN issued by the DGFT, I am of the firm view that the intent of the two governing notifications to promote exports s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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