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TMI Blog2024 (12) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and since Section 15 of Foreign Trade (Development Regulation) Act 1992 provides for an appeal from an order made by the adjudicating authority, the appeal is not admissible. Brief facts :- 2. The petitioner is engaged in the business of manufacturing optical fibers. The petitioner applied for issuance of duty credit scrip under the Merchandise Export from India Scheme (MEIS) with respect to the goods exported to an overseas buyer at UAE but on the instructions of overseas buyer the goods were warehoused in the Free Trade and Warehousing Zone (FTWZ) Unit at Andhra Pradesh. 3. The above transactions were for the period January 2016 to March 2016. The application made by the petitioner came to be rejected on 3 June 2020 and the said rejection was challenged before this Court in Writ Petition No.5156 of 2021. The Co-ordinate Bench of this Court passed a detailed order and observed that in the absence of documentary evidence, MEIS benefit cannot be granted merely on the basis of pleadings which are prima facie insufficient on the face of record. However, after upholding the rejection order, the coordinate bench granted the petitioner one more opportunity to approach the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed rejection letter also records that the petitioner himself has accepted that supplies have been made against the bill of exports, which are covered under the ineligible categories. 6. The petitioner challenged the aforesaid order dated 9 December 2022 passed by the JDGFT by filing an appeal to the ADGFT. The said appellate authority, i.e. ADGFT has dismissed the appeal of the petitioner on the ground that rejection letter is not a decision or order passed by the adjudicating authority against which an appeal can be filed under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992 (the 1992 Act). It is in this backdrop that the petitioner has challenged the said Order-in-Appeal dated 10 November 2023 and the rejection letter dated 9 December 2022 before us. Submissions of the Petitioner : 7. Mr. Nair learned counsel for the petitioner, submits that the appeal is maintainable under Section 9 read with Section 15 of the 1992 Act and, therefore, the findings of the appellate authority without considering the provisions of Section 9 is erroneous. He submits that the appeal is maintainable under Section 9, read with Section 15. He further submits that the rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed or as specified in the licence, certificate, scrip or any instrument bestowing financial or fiscal benefits with reference to the terms, conditions and restrictions so prescribed. (4) The Director-General or the officer authorised under sub-section (2) may, subject to such conditions as may be prescribed, for good and sufficient reasons, to be recorded in writing, suspend or cancel any licence, certificate, scrip or any instrument bestowing financial or fiscal benefits granted under this Act: Provided that no such suspension or cancellation shall be made except after giving the holder of the licence, certificate, scrip or any instrument bestowing financial or fiscal benefits a reasonable opportunity of being heard. (5) An appeal against an order refusing to grant, or renew or suspending or cancelling, a licence, certificate, scrip or any instrument bestowing financial or fiscal benefits shall lie in like manner as an appeal against an order would lie under section 15. 15. Appeal.- (1) Any person aggrieved by any decision or order made by the adjudicating authority under this Act may prefer an appeal,- (a) where the decision or order has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Central Government may levy fees in respect of application for a licence, certificate, scrip etc to be granted or renewed. Section 9(2) provides for processing of such application after making necessary inquiries for grant or renewal as the case may be of the licence, certificate, scrip etc and for recording reasons for refusal. Section 9(5) provides that an appeal against an order refusing to grant or renew or suspending or cancelling a licence, certificate, scrip etc shall lie in like manner as an appeal against an order would lie under Section 15. Section 15(1) begins with appeals from orders passed by the adjudicating authority. 12. Section 2(a) of the Foreign Trade (Development and Regulation) Act, 1992 defines "adjudicating authority" to mean, unless context otherwise requires the authority specified in or under Section 13. Section 13 provides that any penalty may be imposed or any confiscation may be adjudged under this Act by the Director General or by such other officer as may be authorised by notification in the official gazette. Admittedly, when an application is made for issuance of MEIS scrip by the exporter, no penalty is imposed or any confiscation order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal provision. 15. Mr. Mishra, learned counsel for the respondents submitted that the appeal ought to have been filed under Section 15 (1) (b) to the Director-General if the decision or order has been made by an officer subordinate to the Director-General or to any officer superior to the adjudicating authority authorized by the Director-General to hear the appeal. It is his submission that the appeal has not been filed with the Director-General but with ADGFT and, therefore, the rejection is justified. In our view, firstly, this is not the basis on which the appeal order is passed, and, therefore, the respondents cannot make any submission on this count. Even otherwise the second part of Section 15 (1) (b) provides that an appeal can be preferred before any officer superior to the adjudicating authority authorised by the Director-General to hear the appeal. 16. Mr. Mishra fairly stated that ADGFT is an authority superior to JDGFT whose rejection order is challenged. If that be so, we fail to understand as to how the respondents can contend more, particularly in the light of second part of Section 15 (1) (b) that the appeal would not lie before the ADGFT and before the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the application should have been a speaking order showing clearly the reason for coming to the conclusion. In our view, this is absent in the impugned rejection letter. Therefore, in the interest of justice, we quash and set aside the rejection letter dated 9 December 2022 and remand the application dated 27 January 2022 back to the file of respondent no.4 for fresh consideration after giving an opportunity of hearing to the petitioner and direct the respondent no.4 to pass a speaking order deciding the application of the petitioner dated 27 January 2022. 21. In view of the above, we pass the following order :- ORDER (i) The impugned order dated 10 November 2023 rejecting the petitioner's appeal as non-admissible is quashed and set aside. (ii) The rejection letter dated 9 December 2022 passed by the JDGFT and the Order-in-Appeal dated 10 November 2023 passed by the ADGFT is quashed and set aside. (iii) Respondent no.4-JDGFT is directed to consider the petitioner's application dated 27 January 2022 after giving a hearing to the petitioner and passing a speaking order on the said application on or before 31 March 2025. 22. The rule is made absolute in the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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