Gujarat High Court
M/S Deepak Nitrite Limited vs Union Of India on 3 October, 2024
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16051 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
M/S DEEPAK NITRITE LIMITED
Versus
UNION OF INDIA & ORS.
==========================================================
Appearance:
MR ANANDODAYA S MISHRA(8038) with MS HIMANSHI PATWA for the
Petitioner(s) No. 1
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 03/10/2024
ORAL JUDGMENT
Page 1 of 30
Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Anandodaya S. Mishra for the petitioner and learned advocate Mr. P.Y. Divyeshvar for the respondents.
2. Rule returnable forthwith. Learned advocate Mr. P.Y. Divyeshvar waives service of notice of rule on behalf of the respondents.
3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"A. That this Hon'ble Court may be pleased to issue an appropriate a Writ of mandamus or a Writ in the nature of mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India, ordering and directing the Respondents, their officers and subordinates to Page 2 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined issue a Trade/ Public Notice for extending the benefit under MEIS for products namely Para Cumidine and Diaminostilbene 2, 2- disulphonic acid (DASDA) with their revised ITC HS Codes of 2921 49 20 and 2921 59 40 respectively and also to extend such export benefit in an expeditious manner.
"AA. That the Hon'ble Court may be pleased to issue and appropriate writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ directing the Respondent No.2 and/or 3 for issuance of an appropriate Notification reinstating the benefits and appropriate refund along with applicable interest under the MEIS Scheme.
B. And pass, such further
order/orders for granting
relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice C. That the Hon'ble Court may be pleased to issue and appropriate writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ as excluding the products i.e Para Cumindine and DASDA classified under HS Code 29214921 and Page 3 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined 29215940 retrospectively, even without expressed and categorical exclusion, under the Public Notice No. 12/2015-2020 dated 10.07.2020 as it being arbitrary, unlawful and violates Article 14 of Constitution of India."
4. Brief facts of the case are that the petitioner was beneficiary of Merchandise Exports From India Scheme(MEIS) introduced in the Foreign Trade Policy (FTP) for the period of 2015-2020 by the Ministry of Commerce and Industry.
5. The incentives under MEIS is calculated as a percentage of the Freight on Board (FOB) value of the products at 2%, 3% or 5% in accordance with the Appendix 3B of Schedule 2 of the Scheme.
6. The petitioner was manufacturing Page 4 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined products namely Diaminostilbene 2, 2- disulphonic acid (DASDA), Para Cumidine and 2 Ethyl Hexanol which were eligible for benefit of 2% prior to the revision of ITC HS Codes as per Table 2, Appendix-3B of the Scheme.
7. Table 2 of Appendix 3B of the Scheme provides for code wise classification of the reward rates prior to the revision of ITC HS Codes and the benefits availed by the petitioner for the products was in accordance with the said table as under:
Products Erstwhile ITC MEIS Benefit Description HS Code Para 2921 43 90 2% Other Cumidine Toulidines & their Derivative Salts thereof DASDA 2921 59 90 2% Other Aromatic Polyamines and their derivativesl;Page 5 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined salts 2 Ethyl 2920 90 99 2% Other Esters Hexanol of other inorganic acids of non-
metals & their salts
8. By the Finance Act (No.2) of 2019 dated 01.08.2019, the ITC HS Codes were revised in order to synchronize them with the international standards.
9. The Central Government vide Notification No.38/2015-2020 dated 01.01.2020 made amendments to the ITC HS Code and the description of the products in accordance with the Finance Act (No.2) of 2019.
10. Notification No.38/2015-2020 has replaced old ITC HS Code under Table 2 of Page 6 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined Appendix 3B of the MEIS Schedule as under :
Products Erstwhile Revised ITC HS Description ITC HS Code Code Para 2921 43 90 2921 49 20 Para Cumidine Cumidine DASDA 2921 59 90 2921 59 40 Diaminostilbene 2, 2-disulphonic acid 2 Ethyl 2920 90 99 2920 90 00 Other Hexanol
11. For products Para Cumidine and DASDA, separate tariff item 2921 49 20 and 2921 59 40 were introduced replacing the old ITC HS Codes while for 2 Ethyl Hexanol, tariff item 2920 90 99 was substituted by 2920 90 00.
12. Public Notice No.12/2015-2020 dated 10.07.2020 revised the ITC HS Code for 2 Ethyl Hexanol along with the reward rate. Page 7 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined
13. In case of the petitioner, out of three products namely, Diaminostilbene 2, 2-disulphonic acid (DASDA), Para Cumidine and 2 Ethyl Hexanol only the reward rate for 2 Ethyl Hexanol was notified.
14. Revised ITC HS Code of Para Cumidine and Diaminostilbene 2, 2-disulphonic acid (DASDA) are neither notified nor excluded because of which the petitioner was not able to avail the benefit under the MEIS Scheme.
15. The petitioner made various representations to the competent authority to get the reward rates for the revised ITC HS Codes notified by Notification No.38/2015-2020 and various email communications were made to respondent Page 8 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined nos. 2 and 3.
16. On 06.08.2020, the petitioner made a representation to the respondent no.2 with a request to notify the reward benefits for the revised ITC HS Codes which was replied by the respondent asking the petitioner to approach the Basic Chemicals, Cosmetics & Dyes Export Promotion Council (CHEMEXCIL) which was set up by the Ministry of Commerce & Industry, Government of India.
17. The petitioner thereafter by email dated 07.08.2020 requested the CHEMEXCIL for redressal of the grievances of notifying the revised ITC HS Codes to get the benefit of MEIS Scheme.
Page 9 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined
18. CHEMEXCIL by reply dated 11.08.2020 informed the petitioner that as advised by the DGFT, the matter with tariff unit CBIC, Department of Revenue is taken up and subsequently, the tariff unit had informed that the matter has been referred to DBK department for resolution since the CHEMEXCIL have been following up the TU/DBK department on several HS codes but did no receive any communication/reply in the matter.
19. The petitioner thereafter made various representations to respondent no.3 - CBIC by emails dated 13.08.2020, 18.08.2020, 01.09.2020, 11.09.2020, 29.09.2020. 08.10.2020 and 14.10.2020.
20. The Tariff Unit of respondent no.3 by Page 10 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined email dated 26.10.2020 informed the petitioner that the proper authority pertains to Joint Secretary (Drawback) and further correspondence be taken up with him.
21. The petitioner therefore by email dated 26.10.2020 made representation before the Joint Secretary (Drawback).
22. It appears that meanwhile CHEMEXCIL made a representation on 29.10.2020 to OSD Tariff Unit marking copy to the Joint Secretary (Drawback) followed by similar communication dated 17.11.2020 and 25.11.2020 by the petitioner.
23. The petitioner lastly sent an email dated 21.12.2020 to respondent no.3 Page 11 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined regarding extension of the benefit stating that as per email dated 16.10.2020, TRU was not concerned with the MEIS benefit.
24. Respondent no.2-DGFT by email dated 30.12.2020 replied as under:
"It may be recalled that by Public Notice 12 dated 10 July 2020, many new codes have been aligned under the MEIS schedule to reflect the changes in the Finance Act, 2019 with respect to new codes created after 01.01.2020.
Many requests had come from the chemical industry in this Directorate claiming that out of a specific old code, a new code has been carved out/ created from 01.01.2020, however, in absence of any such mention of substitution or carving out in the text of the Finance Act, 2019 it was not possible for this Directorate to examine such claims.
Therefore, CHEMEXCIL was requested to take this up with TRU, CBIC, DoR which would be the appropriate authority to ascertain the veracity of the claims made by many of these firms. No communication from TRU or Page 12 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined Chemexcil on this has been received in the Directorate yet."
25. Being aggrieved the petitioner has approached this Court by filing the present petition.
26. During the pendency of this petition, following order was passed by this Court on 02.12.2021:
"1. Petitioner is before this Court seeking following reliefs:
"6. In view of the facts and circumstances stated above, it is most respectfully prayed:
A. That this Hon'ble Court may be pleased to issue an appropriate Writ of mandamus or a Writ in the nature of mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India, ordering and directing the Respondents, their officers and subordinates to issue a Trade/Public Notice for extending the benefit under MEIS for products namely Para Cumidine and Diaminostilbene 2, 2- Page 13 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined disulphonic acid (DASDA) with their revised ITC HS Codes of 2921 49 20 and 2921 59 40 respectively and also to extend such export benefit in an expeditious manner.
B. And pass, such further
order/orders for granting
relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice."
2. We have heard Mr. A.S. Mishra, learned advocate for the petitioner. According to him, after the running from pillar to post in different departments, the petitioner is before this Court seeking the extension of the benefit under the Merchandise Export India Scheme (MEIS).
According to him, the
representations made to
respondents authorities including respondent No.2 and 3 have not been responded to. The petitioner had lastly made several written communications to respondent No.3, wherefrom no response has been received.
3. Issue notice for final disposal returnable on 23.12.2021.
4. Over and above the regular mode, direct service by way of E- mode or Speed Post is also Page 14 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined permitted."
27. Pursuant to the aforesaid order, the office memorandum dated 28.12.2023 was issued informing the petitioner that new Custom Tariff Item(CTI) was carved out from old CTI and hence instructed respondent no.2 to take necessary action.
28. However, contrary to the aforesaid office memorandum, respondent no.2 vide letter dated 21.05.2024 intimated the petitioner that HS Codes 29214920 and 29215940 cannot be considered for inclusion under the MEIS Scheme.
29. Learned advocate Mr. Mishra for the petitioner submitted that the impugned communication dated 21.05.2024 is contrary to the office memorandum dated 28.12.2023. Page 15 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined
30. It was submitted that the petitioners are therefore, entitled to benefits of MEIS Scheme for Custom Tariff Item No.29214920 and 29215940. It was submitted that for two products namely, Para Cumidine and Diaminostilbene 2, 2- disulphonic acid (DASDA), there is no change in CTI under the new ITC HS Code and therefore, the petitioner is entitled to benefit of MEIS Scheme for rebate.
31. It was further submitted that neither the respondent no.2 nor respondent no.3 have denied the right of the petitioner to avail the benefit of the MEIS as per the old ITC HS Codes as the petitioner was exporting products Diaminostilbene 2, 2- disulphonic acid (DASDA) Para Cumidine and Page 16 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined 2- Ethul Hexanol which were included under MEIS prior to 1.01.2020. i.e. the date of Notification No.38/2015-2020 and there was no dispute pertaining to availing the benefit of MEIS for export of product by the petitioner.
32. It was submitted that Notification No.38/2015-2020 dated 01.01.2020 categorically states that amendment has been done only with a view to synchronize with the Finance Act (No.2) of 2019 and public notice no.12/2015-2020 dated 10.07.2020 was issued in the mid of the year on 1.07.2020 and has been implemented retrospectively from 01.01.2020 which is contrary to the settled legal position and therefore, such retrospective applicability cannot be made and Page 17 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined therefore, export made during the period 01.01.2020 to 1.07.2020 would have the applicable rates as per the Public Notice No.38/2015 dated 01.01.2020.
33. It was submitted that public notice dated 10.07.2020 had included only the product 2 Ethyl Hexanol bearing HS Code 29209099 with retrospective effect but for other two products, MEIS reward rates remained to be declared as they were never excluded categorically till the lapsing of MEIS benefits and for the first time respondents have taken the stand that it was excluded which was never implemented by the force of law or by way of a Trade notice.
34. It was therefore, submitted that from Page 18 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined period 10.07.2020 there was no specific exclusion of the product under reference to deny the benefit of rebate under the scheme.
35. It was therefore, prayed that benefit under the scheme ought to have been extended to the petitioner for the period from 01.01.2020 onwards till the subsistence of the MEIS scheme.
36. On the other hand, learned advocate Mr. P.Y Divyeshvar for the respondent submitted that admittedly till the issuance of Notification No.38/2015-2020, there is no mention of the product manufactured by the petitioner, to whom new ITC HS Code is given as per Appendix 3B, Table 2 of the Merchant Exports from Page 19 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined India Scheme(MEIS) and accordingly, the petitioners are not entitled to the benefits of the MEIS from 1.01.2020 for the product except the product which is granted the benefit vide Public notice dated 10.07.2020 with effect from 1.01.2020 namely 2-Ethyl Hexanol.
37. It was further submitted that the Finance Act and amendment thereof are being introduced as and when required in order to harmonise and synchronize the Custom Tariff Head Codes in accordance with the international standards and accordingly ITC HS Codes and MEIS schedule have been amended through Notification and Public Notices by the respondent and accordingly, Notification No.38/2015 dated 01.01.2020 was issued in exercise of Page 20 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined powers conferred by section 5 of the FT (D&R) Act, 1992 amended from time to time and the powers conferred under para. 1.03 of the FTP 2015-2020 and the corresponding amendments were made in Appendix 3B, Table 2 of the Scheme with effect from 01.01.2020 vide public notice no. 12/2015- 2020 dated 10.07.2020.
38. It was therefore, submitted that as the Code Nos.29214920 and 29215940 are not included in the Appendix 3B Table 2 of the Scheme, the petitioners are not entitled to the benefit of MEIS scheme and respondent no.2 has rightly rejected the benefit to be given to the petitioners as per impugned communication dated 21.05.2024.
Page 21 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined
39. Learned advocate Mr. Divyeshvar referred to and relied upon the said communication dated 21.05.2024 to submit that it was issued taking into consideration the office memorandum dated 28.12.2023.
40. It was therefore, submitted that inclusion of Code no.29214920 and 29215940 is rightly not accepted by the respondent for MEIS scheme.
41. Having heard the learned advocates for the respective parties and considering the facts of the case, the fact remains that the two products namely Para Cumidine bearing Code No. 29214920(old CTI 29214990) and Diaminostilbene-2, 2- disulphonic acid bearing Code Page 22 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined No.29215940(old CTI 29215990) were part of the Appendix 3B Table 2 of the MEIS scheme and notification no.38/2015-2020 was issued only with a view to synchronise with the Finance Act (No.2)of 2019.
42. The Annexures to the Notification no. 38/2015-2020 at Annexure-D page 90 refers to both the items, i.e. ITC HS Code 29214920 and 29215940 as free items. Similarly in public notice no.12/2015-2020 dated 10.07.2020 was issued with a view to add MEIS entries in Appendix 3, Table 2 for exports made with effect from 01.01.2020 and Table B of the said notification provides for benefits for the entries which would not be applicable where rate is zero for exports made with effect from 01.01.2020 as those codes have Page 23 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined ceased to exist with effect from 01.01.2020.
43. On perusal of the Table B of the Notification NO.12/2015-2020 dated 10.07.2020 ITC HS Codes 29214920 and 29215940 are not notified. Therefore, it appears that Code Nos. 29214920 and 29215940 have continued to be part of Appendix-3B Table 2 of the scheme having old CTI 29214990 and 29215990 respectively.
44. In such circumstances, office memorandum date 28.12.2023 issued by respondent no.3 Board is relevant which reads as under :
"Subject: Special Civil Application No. 16051 of 2021 filed in the matter of M/s Deepak Nitrite Limited v/s UOI and Ors, Page 24 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined before the Hon'ble High Court of Gujarat at Ahmedabad.
Please refer to email dated 21.12.2023 received from Sh. Parth Divyeshvar, Central Govt. Standing Counsel, High Court Complex, Ahmedabad, addressed to CBIC and DGFT (copy enclosed) on the subject above.
2. In this regard, it is hereby informed that new CTI 29214920 is carved out from old CTI 29214990 and new CTI 29215940 is carved out from old CTI 29215990. This is for kind information and further necessary action."
45. Considering the aforesaid office memorandum which is referred to by respondent no.2 in communication dated 21.05.2024 to deny the benefit of MEIS Scheme for two products namely Para Cumidine and DASDA classified under Code 29214920 and 29215940 with effect from 01.01.2020as per policy is not tenable. Page 25 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024
NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined
46. Respondent no.2 has given the following reasons for denying such benefit to the petitioners on the said two products:
"3. It may be noted that the new HS codes 29214920 and 29215940 are not substitutes codes of old HS Codes 29214390 and 29215990. These codes were the new HS Codes which were notified based on the Finance Act 2019, and these did not exist for exports before 01.01.2020. It is informed that Para Cumidine and DASDA classified under HS codes 29214920 and 29215940 were not included in Appendix 3B for MEIS after creation of specific ITC HS codes for these products when alignment of MEIS Schedule was done with Finance Act of 2019. Therefore, MEIS benefits are not available to items Para cumidine and DASDA classified under HS codes 29214920 and 29215940 w.e.f. 01.01.2020 as per Policy.
4. Further, it is not feasible to extend benefits to these items under MEIS now as the scheme stands discontinued w.e.f. 01.01.2021. Please note that MEIS is not a matter of right, and any decision taken by DGFT shall be final and binding on all matters relating to the interpretation of the Policy, provisions in the Handbook of Procedures, Appendices, and Aayat Page 26 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined Niryat Forms, or the classification of any item for import/export in the ITC (HS). The relevant paras from Foreign Trade Policy 2015-20 are reproduced here for your easy reference -
2.14 Authorisation - not a Right No person can claim an Authorisation as a right and DGFT or RA shall have power to refuse to grant or renew the same in accordance with provisions of FT (D&R) Act, Rules made there under and FTP."
"2.57 Interpretation of Policy
(a) The decision of DGFT shall be final and binding on all matters relating to interpretation of Policy, or provision in Handbook of Procedures, Appendices and Aayat Niryat Forms or classification of any item for import/export in the ITC (HS)."
5. In this regard, accordingly, the request of the firm for inclusion of HS Codes 29214920 and 29215940 retrospectively w.e.f. 01.01.2020 under MEIS scheme cannot be considered
6. This is issued with the approval of the DG, DGFT."
47. The aforesaid reasons assigned for denial of the benefit are contrary to the Page 27 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined Notification No. 38/2015-2020 dated 01.01.2020 read with public notice no. 12/2015-2020 dated 10.07.2020 which does not exclude HS Codes 29214920 and 29215940 as both the notifications are issued only with a view to syncronise the HS Codes with Finance Act (No. 2) of 2019.
48. Appendix 3B Table 2 was introduced to MEIS Scheme from day one and on perusal of both the aforesaid notifications and public notice, there is no change in the said Table more particularly when items which were excluded are specifically stated in the notification and public notice.
49. In that view of the matter, the contention raised on behalf of the Page 28 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined respondent that after creation of specific ITC HS Code for these products, alignment of MEIS Schedule was done with Finance Act (No. 2) of 2019 is not tenable as there is no change in the MEIS schedule so far as these two items are concerned.
50. The next objection raised by the respondent is with regard to MEIS Scheme stands discontinued with effect from 01.01.2021 and therefore, no benefit can be given to the petitioner and the decision of DGFT is final and binding on all matters relating to interpretation of policy and provisions in the handbook of procedure etc., is also not tenable in view of the fact that at no point of time Codes No. 29214920 and 29215940 have been excluded from the schedule to MEIS Scheme Page 29 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024 NEUTRAL CITATION C/SCA/16051/2021 JUDGMENT DATED: 03/10/2024 undefined which is in consonance with the office memorandum issued by CBIC which clearly states that new CTI 29214920 is carved out from old CTI 29214990 and new CTI 29215940 is carved out from old CTI 29215990 and in that view of the matter, the petitioner is entitled to benefit of MEIS on both the products till 31.12.2020.
51. In view of foregoing reason, the petition succeeds and is accordingly allowed. Rule is made absolute. No order as to costs.
(BHARGAV D. KARIA, J) (MAUNA M. BHATT,J) RAGHUNATH R NAIR Page 30 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Tue Oct 29 2024 Downloaded on : Sat Nov 02 21:16:44 IST 2024