Kerala High Court
Bhavani Erectors Pvt. Ltd vs Union Of India on 5 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 19111 OF 2021
PETITIONER:
M/s.BHAVANI ERECTORS PVT. LTD,
BHAVANI TRADE CENTRE,
HIGH SCHOOL JUNCTION,
KARUNAGAPPALLY, KOLLAM - 691 515,
REP. BY ITS DIRECTOR,
JIJESH V.PILLAI, AGED 37 YEARS,
S/O.VISWANATHAN PILLAI,
BHAVANI, HIGH SCHOOL JUNCTION,
KARUNGAPPALLY, KOLLAM - 691 515.
BY ADVS.
SRI.PRAVEEN K. JOY
SRI.E.S.SANEEJ
SRI.M.P.UNNIKRISHNAN
SRI.M.K.SAMYUKTHA
SRI.N.ABHILASH
SRI.DEEPU RAJAGOPAL
SRI.SANDRA S.KUMAR
RESPONDENTS:
1 UNION OF INDIA,
REP. BY SECRETARY,
MINISTRY OF COMMERCE AND TRADE,
NEW DELHI - 110 011.
2 THE DIRECTOR GENERAL,
DIRECTORATE OF FOREIGN TRADE,
UDYOG BHAVAN, NEW DELHI, PIN - 110 011.
3 THE ADDITIONAL DIRECTOR GENERAL OF
FOREIGN TRADE,
"C AND E" WING, 6TH FLOOR,
KENDRIYA SADAN, 2ND BLOCK,
KORAMANGALA, BENGALURU - 560 034.
WP(C) No.19111/2021
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4 THE JOINT DIRECTOR,
GENERAL OF FOREIGN TRADE,
DGFT, RA-KOCHI, VTH FLOOR,
AL-BLOCK, KENDRIYA BHAVAN,
KAKKANADU, ERNAKULAM, PIN - 682 037.
ADDL.5 THE SENIOR INTELLIGENCE OFFICER,
OFFICE OF THE DIRECTORATE OF REVENUE
INTELLIGENCE,
BANGALORE ZONAL UNIT SITE NO. 8(P) 2,
1ST STAGE, 3RD BLOCK,
OPP. BDA COMPLEX, HBR LAYOUT,
KALYAN NAGAR POST, BANGLORE-560043.
(IMPLEADED AS PER ORDER DATED 11-10-2021 IN IA
2/2021 IN WP(C) NO. 19111/2021).
BY ADV SRI.GIRISH KUMAR.V., CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.19111/2021
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JUDGMENT
~~~~~~~~~
Dated this the 5th day of November, 2021
The petitioner, which is a Company working in the
field of construction, has approached this Court seeking to set
aside Exts.P1 and P3 and to direct the 3 rd respondent to take
up and pass final orders on Exts.P2, P4 and P5 objections
within a time limit fixed by this Court.
2. The petitioner entered into an agreement with
Bharat Heavy Electricals Limited (BHEL), Sudan. The said
Company had earlier entered into a contract with National
Electricity Corporation of Sudan Government. The agreement
entered into by the petitioner with BHEL was a sub contract for
executing the works at Thermal Power Station, Kosti. While
so, the Sudanese Thermal Power Generating Company
Limited, which is a company generated for running of Thermal
Power Projects, entered into an agreement with the petitioner.
WP(C) No.19111/2021
When the petitioner raised bills, the Additional Director
General of Foreign Trade initiated proceedings against the
Company referring to two audit objections.
3. By Ext.P1, the petitioner was informed that the
petitioner has entered into an agreement with BHEL for
erection, testing, commissioning and trial operation of Boilers
and auxiliaries Power Plant in Kosti, Sudan and nine invoices
were raised directly to M/s.Sudanese Thermal Power
Generating Company Limited and remitted by M/s.Bhavani
International Limited, Dubai. As the policy does not permit
rewards to service providers who provide service through
commercial presence in any other country, foreign exchange
remitted by the group company is not eligible for SEIS Scrip.
The petitioner was therefore required to pay back the value of
scrip with interest on urgent basis failing which action under
FTDR Act will be initiated against the company. The petitioner
submitted Ext.P2 explanation.
4. Subsequently, the petitioner was served with
another identical notice, Ext.P3, on 18.03.2021. In Ext.P3
WP(C) No.19111/2021
also, the petitioner was informed that the policy does not
permit rewards to service providers who provide service
through commercial presence in any other country, FE
routed/remitted by group company is not eligible for SEIS
Scrip. The petitioner submitted Ext.P4 reply to the said notice.
5. The petitioner would contend that the Government
had extended certain beneficial schemes to the exporters in
the country and those benefits are provided to both service
exporters as well as exporters of goods. It is in continuation of
the same that the Service Exports from India Scheme (SEIS)
has been introduced in 2015 as a part of the new Foreign
Trade Policy 2015-2020. Under the said polity, the petitioner
was given the benefits. The respondents approved Scrips
gained by the petitioner. The audit objection in respect of the
same came two years thereafter. The petitioner submits that
the petitioner has submitted a comprehensive reply to Exts.P1
and P3 by way of Ext.P5. The respondents are compellable to
consider the explanation given by the petitioner and desist
from proceeding with Exts.P1 and P3.
WP(C) No.19111/2021
6. I have heard the learned counsel for the petitioner,
the learned Central Government Counsel appearing for
respondents 1 to 4 and the learned Standing Counsel for the
additional 5th respondent.
7. After considering the grievance raised by the
petitioner, this Court is of the considered view that Exts.P1
and P3 have been issued to the petitioner based on audit
objections dated 03.03.2020 and 18.12.2020. The petitioner
has given explanation regarding the objections as contained in
Ext.P5 representation. Therefore, the respondents are liable
to consider the explanation granted by the petitioner and
finalise the proceedings taking into account the explanation.
The writ petition therefore can be disposed of giving
appropriate direction to the respondents.
Accordingly, the writ petition is disposed of directing
the 3rd respondent-Additional Director General of Foreign
Trade to consider Ext.P5 representation submitted by the
petitioner and pass appropriate orders thereon, after giving an
opportunity of hearing to the petitioner. The 3 rd respondent
WP(C) No.19111/2021
will be at liberty to hear the petitioner through virtual mode. A
final decision shall be taken within a period of two months. It
is made clear that this Court has not pronounced anything on
merits of the claim of the petitioner. No coercive action shall
be taken against the petitioner till a final decision is taken by
the 3rd respondent on Ext.P5.
Sd/-
N. NAGARESH, JUDGE
aks/06.11.2021
WP(C) No.19111/2021
APPENDIX OF WP(C) 19111/2021
PETITIONER'S EXHIBITS:
Exhibit P1 THE TRUE PHOTOCOPY OF THE NOTICE WITH
FILE NO.07/21/094/80018/AM18 ISSUED BY
THE FOREIGN TRADE DEVELOPMENT OFFICER
ON BEHALF OF THE 3RD RESPONDENT DATED
3/12/2020.
Exhibit P2 THE TRUE PHOTOCOPY OF THE OBJECTION
SUBMITTED BEFORE THE 3RD RESPONDENT
DATED 23/02/2021.
Exhibit P3 THE TRUE PHOTOCOPY OF THE NOTICE ISSUED
WITH FILE NO.07/21/098/80067/AM19 BY
THE FOREIGN TRADE DEVELOPMENT OFFICER
ON BEHALF OF THE 3RD RESPONDENT DATED
18/03/2021.
Exhibit P4 THE TRUE PHOTOCOPY OF THE OBJECTION
SUBMITTED BEFORE THE 3RD RESPONDENT
DATED 31/03/2021.
Exhibit P5 THE TRUE PHOTOCOPY OF THE OBJECTION
SUBMITTED BEFORE THE 3RD RESPONDENT
DATED 06/09/2021.
Exhibit P6 TRUE COPY OF THE LETTER DATED 30-08-
2021 ISSUED BY PETITIONER TO THE SENIOR
INTELLIGENCE OFFICER, DIRECTORATE OF
REVENUE INTELLIGENCE.
SR
