Anupam Port Cranes Corporation ... vs Union Of India
2023 Latest Caselaw 4505 Guj

      C/SCA/5719/2021                                ORDER DATED: 15/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 5719 of 2021

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              ANUPAM PORT CRANES CORPORATION LIMITED
                              Versus
                          UNION OF INDIA
==========================================================
Appearance:
NATASHA SUTARIA(7907) for the Petitioner(s) No. 1
Mr.HIRAK SHAH FOR MR NIKUNT K RAVAL(5558) for the Respondent(s)
No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 4
NOTICE UNSERVED for the Respondent(s) No. 5
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE DEVAN M. DESAI

                       Date : 15/06/2023
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

[1] This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed

to direct the respondents to consider and accept the

claim of the petitioner under the Merchandise Export

from India Scheme (for short 'MEIS') and thereby, direct

the respondents to grant benefit under the said Scheme.

[2] Looking to the issues involved in the present

petition, learned advocates appearing for the parties have

jointly requested that this petition may be finally

C/SCA/5719/2021 ORDER DATED: 15/06/2023

disposed of at the admission stage.

[3] Hence, Rule. Learned advocate Mr.Hirak Shah

waives service of notice of rule for and on behalf of

respondent nos.1 to 3.

[4] The brief facts leading to the present case are

as under:

Brief Facts:-

4.1 It is the case of the petitioner that the

petitioner is a company involved in the business of

manufacturing and supplying cranes. It is stated that on

05.10.2015, the petitioner exported 'Steel Plates' under

MEIS notified under the Foreign Trade Policy notified as per Section 5 of the Foreign Trade (Development &

Regulation) Act, 1992 (hereinafter referred to as 'the Act

1992'). Upon successful completion of process of export,

the petitioner submitted shipping bills No.3381899,

3381927 and 3381897 claiming duty drawbacks duly

entitled to the petitioner under MEIS.

4.2 It is further case of the petitioner that at the

time of filing of the EDI shipping bills, the petitioner

suffered from problems of "YES/NO clicking" and was not

C/SCA/5719/2021 ORDER DATED: 15/06/2023

able to avail for the benefits under the MEIS. The

benefits under the Scheme are issued in the form of

duty credit scrips. The shipping bills were not

electronically transmitted to the respondent no.2 for

processing the MEIS scrips and therefore, the petitioner

was not able to claim the benefits.

4.3 It is further stated that the entitlement to

MEIS is a matter to be examined by respondent no.2 on

an application made in this behalf by the petitioner. The

petitioner sent email dated 26.02.2018 and requested to

respondent no.2 to consider the claim of the petitioner

for availing benefits under MEIS. The petitioner has

placed reliance upon Trade Notice No.24/2018 dated

21.02.2018 to the email sent by the petitioner it was pointed out that the petitioner had inadvertently omitted

to select 'YES' in the online platform so as to claim the

benefit under MEIS from the respondent no.2. It is the

grievance of the petitioner that though the email was

sent to the respondent no.2, no response was given by

the respondent no.2 and thereby, the respondent no.2 did

not allow the claim of the petitioner. The petitioner was

also not given option to rectify the technical mistake by

amendment as per the provisions of law. Therefore, the

C/SCA/5719/2021 ORDER DATED: 15/06/2023

petitioner has preferred the present petition.

[5] Heard learned advocate Ms.Natasha Sutaria for

the petitioner and learned Standing Counsel Mr.Hirak

Shah for respondent nos.1 to 3.

[6] Learned advocate for the petitioner mainly

submitted that because of the technical error, the

petitioner could not click 'YES' in the portal of the

respondents and therefore, in the shipping bill itself it is

specifically stated that "I/We SHALL CLAIM THE

REWARD UNDER MERCHANDISE EXPORTS FROM

INDIA SCHEME (MEIS)".

6.1 It is further submitted by the learned advocate

for the petitioner that the respondent received representations from various persons similar to that of

the petitioner and therefore, the respondents issued

Trade Notice No.24/2018 on 21.02.2018. Learned advocate

has referred the said Trade Notice which is placed on

record at page No.23 of the compilation.

6.2 It is submitted that as per the the said

Trade Notice issued by the concerned respondent, the

petitioner had submitted necessary details and documents

C/SCA/5719/2021 ORDER DATED: 15/06/2023

and sent email on 26.02.2018 i.e. within a period of five

days only. It is contended that though the said email

was received by the respondent, the petitioner was not

permitted to amend the necessary documents nor any

reply was sent to the petitioner and therefore, the

petitioner has preferred the present petition.

6.3 Learned advocate for the petitioner, at this

stage, has placed reliance on the decision of this Court

rendered in the case of Bombardier Transportation India

Pvt. Ltd. Vs. Directorate General of Foreign Trade passed in

Special Civil Application No.11038 of 2020 decided on

17.02.2021 and submitted that the issue involved in the

present petition is covered by the said decision. The copy

of the said decision is placed on record during the course of arguments. Therefore, learned advocate for the

petitioner urges before this Court to allow the present

petition and an appropriate direction may be issued to

the respondents.

[7] On the other hand, learned Standing Counsel

for the respondent Nos.1 to 3, has vehemently opposed

this petition. Learned Standing Counsel has referred the

averments made in the Affidavit-in-reply filed on behalf

C/SCA/5719/2021 ORDER DATED: 15/06/2023

of respondent Nos.1 to 3. Copy of the Affidavit-in-reply

placed on record at page No.25 of the compilation.

7.1 It is submitted that the petitioner had not

made any request for rectification/amendment immediately

after submission of the shipping bills and only on

26.02.2018 for the first time, email was sent by the

petitioner to the concerned respondent. It is further

submitted that the facts of the present case are different

from the facts of the case upon which the reliance has

been placed by the learned advocate for the petitioner.

7.2 Learned Standing Counsel has referred the

relevant observations made in the judgment passed by

this Court on 17.02.2021 and submitted that the case of

the petitioner is not covered by the order passed by this Court on 17.02.2021. Therefore, the present petition may

be dismissed.

[8] We have considered the submissions canvassed

by the learned advocates for the parties. We have also

perused the materials available on record. It emerges

from the record that the petitioner exported "Steel

Plates" under the MEIS notified by the respondents

under the Act, 1992. Upon successful completion of the

C/SCA/5719/2021 ORDER DATED: 15/06/2023

process of export, the petitioner submitted shipping bills

and claimed duly drawback contending that the petitioner

is entitled to the benefit of MEIS. It is also the case of

the petitioner that at the time of filing of the EDI

shipping bills, there was a problem of "YES/NO

clicking" and the petitioner was not able to avail for the

benefits under MEIS because of the said problem.

However, in the shipping bills it is specifically stated

that "I/We SHALL CLAIM THE REWARD UNDER

MERCHANDISE EXPORTS FROM INDIA SCHEME

(MEIS)".

[9] It transpires from the record that similarly

situated other exporters have also inadvertently ticked 'N' (for No) instead of 'Y' (for Yes) in "Reward" column of

shipping bills while filing the EDI shipping bills but

such exporters have been declared the intent in the

affirmative (in wordings) on the shipping bills. Such type

of exporters made representations before the concerned

respondent authority and therefore, the concerned

respondent issued Trade Notice No.24/2018 dated

21.02.2018. Trade Notice is reproduced hereinunder:-

C/SCA/5719/2021 ORDER DATED: 15/06/2023

Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Udyog Bhawan, New Delhi

Trade Notice No. 24/2018 Dated:21st February, 2018

To,

1. All Exporters/Members of Trade

2. All Regional Authorities of the Directorate General of Foreign Trade

Subject: Information on details of shipping bills in cases where exporters who have inadvertently ticked "N" (for No) instead of "Y" (for Yes) in "Reward" column of shipping bills while filing the EDI shipping bills, but have declared the intent in the affirmative (in wordings) in the shipping bill.

Representations have been received in this Directorate seeking extension of benefit of Merchandise Exports from India Scheme (MEIS) to such cases/shipping bills where exporters have inadvertently ticked "N" (for No) instead of "Y" (for Yes) in the "Reward" column of shipping bills while filing the EDI shipping bills, but have declared the intent in the affirmative (in wordings) on the shipping bills. In order to gauge the problem and the financial implications, following information is being asked for considering the matter.

2. It is requested that the exporters who have shipping bills which got ticked "N" (for No) instead of "Y" (for Yes) in "Reward" column of shipping bills while filing the EDI shipping bills, but have declared the intent in the affirmative (in wordings) on the shipping bills may send the details in excel format as in the table below by 31.03.2018 at the mail address: [email protected]. While sending the details it may please be noted that the shipping bills which had a Let Export date from 01.10.2015 to 31.03.2016 only should be included. Also, shipping bills in

C/SCA/5719/2021 ORDER DATED: 15/06/2023

which declaration of intent has been allowed by customs authorities later, by manual amendment or otherwise should be excluded from the table below.

Name of the         IEC         Shipping Bill    Let Export Port of            FOB value
Firm                            Number           date       Export             as per
                                                                               shipping bill

3. This issues with the approval of the competent authority Sd/-

(Lokesh HD) Joint Director General of Foreign Trade

(Issued from F.No.01/61/180/152/AM16/PC-3)

[10] It further reveals from the record that after

issuance of the said Trade Notice, within a period of five

days only i.e. 26.10.2018, the petitioner submitted

necessary details to the concerned respondent. The copy

of the said email is placed on record at page No.22 of

the compilation.

[11] At this stage, this Court would like to refer

the order dated 17.02.2021 passed by this Court in

almost similar type of matter being Special Civil

Application No.11038 of 2020. From the aforesaid order,

it reveals that in the said case, similar type of

C/SCA/5719/2021 ORDER DATED: 15/06/2023

contentions were raised on behalf of the respondents.

Thereafter, this Court has observed in paras 18, 23 and

25 as under:-

"18.The entitlement to MEIS benefits is governed by the Chapter-III of the Foreign Trade Policy 2015-20 (FTP 2015-

20) and accordingly, the scheme for the grant of the benefit will be governed thereunder. In other words, the substantive rights and obligations are created by the MEIS Scheme under Chapter-III of the FTP. It also becomes apparent from Para 3.04 of the Policy that once the notified goods are exported to a notified market, the exporter becomes entitled to the MEIS benefits. Thus, entitlement, restriction thereof and conditions, if any, have to be found within the letters of the Chapter-III of the FTP 2015-20. Thus, the writ-applicant becomes entitled to the MEIS benefits once it exports the notified goods to the notified market. This benefit cannot be defeated due to procedural infirmity of missing to mark/tick "Y" in the rewards column.

23.The writ-applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no.3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system.

25. In view of the above, the present writ-application succeeds and is hereby allowed. The respondents nos.1 and 2 are directed to grant the benefits of the MEIS to the writ-

C/SCA/5719/2021 ORDER DATED: 15/06/2023

applicant within a period of four weeks from the date of the receipt of this order."

[12] Learned Standing Counsel for the respondents

has tried to argue that the facts of the present case are

different. Learned Counsel has referred paras 7, 8 and

16 of the aforesaid order passed by this Court. After

referring to the same, it is submitted that in the said

case, amendment was permitted and the concerned

respondent issued an Amendment Certificate in the said

case. Therefore, this Court passed the order in favour of

the concerned petitioner.

[13] We are of the view that the aforesaid

contentions taken by the respondents is misconceived. It

is pertinent to note that in para 12 of the aforesaid

decision rendered by this Court, this Court has recorded

similar type of contentions which is taken in the present

case in the Affidavit-in-reply filed by the respondents,

more particularly, paras 11(b) as well as 12(a) of the

Affidavit-in-reply. In the present case as observed

hereinabove, the concerned respondent himself issued

Trade Notice dated 21.02.20218 in pursuance of the

representations received from the various exporters, who

C/SCA/5719/2021 ORDER DATED: 15/06/2023

have faced similar type of difficulty while submitting the

shipping bills, who have specifically declared the intent

in the affirmative (in wordings) on the shipping bills. In

the present case, as observed hereinabove, the petitioner

has specifically stated (in wordings) the intention to

claim the 'Reward' for MEIS. Therefore, we are of the

view that the facts of the present case are almost

similar to that of the case of the petitioner of Special

Civil Application No.11038 of 2020.

[14] In view of the aforesaid discussions, we are

inclined to entertain the present petition. Accordingly, the

present petition is allowed. The concerned respondents

are hereby directed to grant the benefit under MEIS to the petitioner within a period of six weeks from the date

of receipt of this order. Rule is made absolute.

(VIPUL M. PANCHOLI, J)

(D. M. DESAI,J) MANOJ