Kerala High Court
Anu Cashews vs The Commissioner Of Customs on 13 November, 2019
Equivalent citations: AIRONLINE 2019 KER 874
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019/22ND KARTHIKA, 1941
W.P(C).No.25339 OF 2019(N)
PETITIONER:
ANU CASHEWS
PARAMESHWAR NAGAR,KOLLAM-691001,
REPRESENTED BY ITS PARNTER,MR.ANU PILLAI.
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.V.ABRAHAM MARKOS
SRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SHRI.VIPIN ANTO H.M.
SHRI.ALEXANDER JOSEPH MARKOS
SHRI.SHARAD JOSEPH KODANTHARA
RESPONDENTS:
1 THE COMMISSIONER OF CUSTOMS
CUSTOM HOUSE,WILLINGDON ISLAND,
COCHIN-692009.
2 THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE,WILLINGDON ISLAND,
COCHIN-692009.
3 THE DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE,
OFFICE OF THE JOINT DIRECTOR OF FOREIGN TRADE,
G-FLOOR,GOKULAM-KLDB,BEHIND MILMA,
PATTOM,TRIVANDRUM-695004.
4 DIRECTOR GENERAL OF FOREIGN TRADE,
V FLOOR,A-1 BLOCK,KENDRIYA BHAVAN,
KAKKANAD,ERNAKULAM-682037.
ADDL. 5TH RESPONDENT:
5 DIRECTOR GENERAL OF FOREIGN TRADE
H WING, GATE NO.2, UDYOG BHAVAN,
MAULANA AZAD ROAD, NEW DELHI - 110 011.
ADDL.5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED
13.11.2019 IN I.A.NO.2/2019.
R1 - R2 BY SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF
EXCISE AND CUSTOMS
R3-R4 BY ADV.SMT.DAYASINDHU SHREEHARI N.S., CGC
ADDL.R5 BY ADV.SRI.JAISHANKER V. NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.11.2019 ALONG WITH W.P(C).NO.27126/2019(M),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019/22ND KARTHIKA, 1941
W.P(C).No.27126 OF 2019(M)
PETITIONER:
MANGALATH CASHEWS
CHERIKONNAM, KOLLAM-691001,
REPRESENTED BY ITS PROPRIETOR, MR.SAJI.S.
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SHRI.VIPIN ANTO H.M.
SHRI.ALEXANDER JOSEPH MARKOS
SHRI.SHARAD JOSEPH KODANTHARA
RESPONDENTS:
1 THE COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN-682009.
2 THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN-682009.
3 THE DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE,
OFFICE OF THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE,
G-FLOOR, GOKULAM-KLDB, BEHIND MILMA, PATTOM, TRIVANDRUM-
695004.
4 DIRECTOR GENERAL OF FOREIGN TRADE,
V FLOOR, A-1, BLOCK, KENDRIYA BHAVAN, KAKKANAD,
ERNAKULAM-682037.
ADDL. 5TH RESPONDENT:
5 DIRECTOR GENERAL OF FOREIGN TRADE
H WING, GATE NO.2, UDYOG BHAVAN,
MAULANA AZAD ROAD, NEW DELHI - 110 011.
ADDL.5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED
13.11.2019 IN I.A.NO.1/2019.
R1 - R2 BY SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE
AND CUSTOMS
R3-R4 BY ADV.SMT.DAYASINDHU SHREEHARI N.S., CGC
ADDL.R5 BY ADV.SRI.JAISHANKER V. NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.11.2019 ALONG WITH W.P(C).NO.25339/2019(N),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.25339/2019
& : 4 :
W.P.(C).No.27126/2019
'C.R.'
JUDGMENT
As both these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment.
2. The petitioners are exporters, who seek to avail the benefit of the Merchandise Exports from India Scheme [MEIS] as envisaged under the Foreign Trade Policy, 2015-20. As per paragraph 3.04 of the Foreign Trade Policy, the entitlement under the MEIS Scheme is described as follows:
"3.04 Entitlement under MEIS Exports of notified goods/products with ITC (HS) code, to notified markets as listed in Appendix 3B, shall be rewarded under MEIS. Appendix 3B also lists the rate(s) of rewards on various notified products [ITC (HS) code wise]. The basis of calculation of reward would be on realixed FOB value of exports in free foreign exchange, or on FOB value of exports as given in the Shipping Bills in freely convertible foreign currencies, whichever is less, unless otherwise specified."
3. The procedure for claiming the benefit of the MEIS Scheme is described in paragraph 3.14 Hand Book of Procedures, which reads as follows:
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W.P.(C).No.27126/2019
"3.14. Procedure for Declaration of Intent on EDI and Non EDI shipping bills for claiming rewards under MEIS including export of goods through courier or foreign post offices using eCommerce (a) (I) EDI Shipping Bills: Marking/ticking of "Y" (for Yes) in "Reward" column of shipping bills against each item, which is mandatory, would be sufficient to declare intent to claim rewards under the scheme. In case the exporter does not intend to claim the benefit of reward under Chapter 3 of FTP exporter shall tick "N" (for No). Such marking/ticking shall be required even for export shipments under any of the schemes of Chapter 4 (including drawback), Chapter 5 or Chapter 6 of FTP."
4. In these writ petitions, the petitioners, while claiming the benefit of the MEIS Scheme, indicated their intention to claim the reward under the Scheme in a specific box provided for the same in the software that provided for uploading the details to the web portal of the Central Government. Unfortunately, in a further column which required them to check the appropriate box with regard to the intention to claim reward in respect of the export consignment, the petitioner omitted to check the box stating "Yes", and on account of that, the system recorded the default setting, which indicated "No". That this was an inadvertent mistake occasioned by the petitioner will be apparent from a perusal of the shipping bill produced as Ext.P4 in W.P.(C).No.25339/2019, which shows the words " WE INTEND TO CLAIM REWARD UNDER MEIS " as W.P.(C).No.25339/2019 & : 6 :
W.P.(C).No.27126/2019
also "No" in the box against the query with regard to intention to claim the MEIS benefit. The claim of the petitioners for the benefit of the reward was therefore disallowed by the respondents, who took the stand that in view of the exporter not having indicated its intention of claiming the benefit under the MEIS Scheme, the necessary verification of the export consignment was not done prior to its export, and a verification of the export consignment is now not possible.
5. When the matter came up for admission, this Court directed the parties to produce a screen shot of the web portal which would show the details that were required to be filled in while uploading the shipping bill in relation to the exports thereto. A perusal of the screen shot produced indicates that there are separate columns wherein the description of the goods, and the intention of the exporter to claim the export benefit, can be entered. Over and above this, there is another column requiring the exporter to indicate whether he intends to avail the benefit of the Export Benefit Scheme against which the default setting reads as "No". In other words, the default setting in respect of a claim for the benefit of an Export Promotion Scheme is always in the negative, and it requires a positive act on the part of the exporter to uncheck the box W.P.(C).No.25339/2019 & : 7 :
W.P.(C).No.27126/2019
reading "No" and check the box reading "Yes", for the purposes of claiming the benefit.
6. In the cases before me, especially in W.P. (C).No.25339/2019, I find that while the exporter did not check the box concerned to read "Yes", in the column meant for the description of the goods he had clearly indicated his intention to avail the benefit of the Export Promotion Scheme. Under such circumstances, I am of the view that the denial of a claim for export benefit could not have been done in a mechanical manner merely because there was a technical lapse on the part of the exporter concerned in not checking a particular box in the web portal, more so when there was sufficient indication from the other details entered therein that pointed to the exporter's intention to claim the reward.
I therefore dispose these writ petitions with a direction to the respondents, including the additional 5th respondent in both the writ petitions, to consider the claim of the petitioners for export benefit, afresh, in the light of the observations in this judgment, and to grant the export benefits, if on an overall consideration of the details furnished by the petitioner, the intention to claim the benefit of the MEIS Scheme was seen manifested at the time of export. The W.P.(C).No.25339/2019 & : 8 :
W.P.(C).No.27126/2019
additional 5th respondent in both these writ petitions shall consider the claims of the petitioners, afresh, within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioners. To enable the additional 5th respondent to do so, and in view of the submission before me that the rate of export benefit is the same irrespective of the variety of cashew exported and that there is no dispute with regard to realization of export proceeds, the Customs Authorities shall issue the necessary No Objection Certificates in favour of the petitioners, within a period of one week from the date of receipt of a copy of this judgment.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
prp/13/11/19
W.P.(C).No.25339/2019
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W.P.(C).No.27126/2019
APPENDIX OF W.P(C).NO.25339/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MERCHANDISE EXPORTS FROM
INDIA SCHEME(MEIS)ELABORATED UNDER CHAPTER 3 OF THE FOREIGN TRADE POLICY.
EXHIBIT P2 TRUE COPY OF SHIPPING BILL NO.9238680 DATED 03/08/2016.
EXHIBIT P3 TRUE COPY OF SHIPPING BILL NO.1423053 DATED 03/10/2016 EXHIBIT P4 TRUE COPY OF SHIPPING BILL NO.4017249 DATED 10/02/2017.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 11/12/2017 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF LETTER DATED 15/12/2017 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF LETTER DATED 12/07/2018 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF LETTER DATED 27/07/2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P9 TRUE COPY OF AFFIDAVIT DATED 20/7/2019 FILED BY THE CASHEW EXPORT PROMOTION COUNCIL OF INDIA)BEFORE THE 1ST RESPONDENT EXHIBIT P10 TRUE COPY OF ORDER DATED 20/7/2019 PASSED BY THE 1ST RESPONDENT.
W.P.(C).No.25339/2019
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W.P.(C).No.27126/2019
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 25/04/2019
ISSUED BY THE CASHEW EXPORT PROMOTION
COUNCIL OF INDIA TO THE 3RD RESPONDENT.
EXHIBIT P12 TRUE COPY OF JUDGMENT DATED 10/01/2019 PASSED BY THE HONOURABLE MADRAS HIGH COURT IN W.P(MD)NO.25252/2018.
EXHIBIT P13 TRUE COPY OF DECISION OF THE HONOURABLE COURT IN THE CASE OF SAINT GOBIAN PVT.LTD. VS. UNION OF INDIA REPORTED IN 2018 (361)ELT 1000.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY// P.S. TO JUDGE APPENDIX OF W.P(C).NO.27126/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF MERCHANDISE EXPORTS FROM INDIA SCHEME (MEIS)ELABORATED UNDER CHAPTER 3 OF THE FOREIGN TRADE POLICY.
EXHIBIT P2 TRUE COPY OF SHIPPING BILL NO.6325692 DATED 26.5.2017.
EXHIBIT P3 TRUE COPY OF ORDER DATED 20.7.2019 PASSED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF LETTER DATED 25.4.2019 ISSUED BY THE CASHEW EXPORT PROMOTION COUNCIL OF INDIA TO THE 3RD RESPONDENT.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE