Gujarat High Court
M/S Mehta Stone Consortium vs The Commissioner Of Customs, Mundra on 10 February, 2022
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/15720/2020 ORDER DATED: 10/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15720 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 2914 of 2021
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M/S MEHTA STONE CONSORTIUM
Versus
THE COMMISSIONER OF CUSTOMS, MUNDRA & 3 other(s)
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Appearance:
MR CHIRANJEEV D TANDON(9678) for the Petitioner(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 1,2,3
MR DEVANG VYAS, ADDITIONAL SOLICITOR GENERAL OF INDIA for the
Respondents
Mr. NIKUNT RAVAL, ADVOCATE for the Respondents
NOTICE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/02/2022
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 Since the issues raised in both the captioned writ applications are the same, those were taken up for hearing analogously and are being disposed of by common order.
2 For the sake of convenience, we treat the Special Civil Application No.2914 of 2021 as the lead matter.
3 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"A) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents by themselves, their subordinate servants and agents to forthwith allow Page 1 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022 C/SCA/15720/2020 ORDER DATED: 10/02/2022 the petitioner to claim under MEIS scheme and accept the amendment in Shipping Bills as per the request made by Letter dated July 17, 2020 and November 9, 2020 (Annexure -F) B) Your Lordships be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, direction or order quashing and setting aside the letter dated November 4, 2020 and December 4, 2020 issued with approval of respondent No.3 - the Deputy Commissioner of Customs (Export), Mundra (Annexure-H).
C) Such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
4 The writ applicant seeks to challenge the legality and validity of the letters dated 4th November 2020 and 4th December 2020 respectively declining to grant the amendments of the shipping bills under Section 149 of the Customs Act, 1962 so as to enable the writ applicant to claim benefit under the Merchandise Exports from India Scheme ["MEIS" for short].
5 We need not delve much into the facts giving rise to this litigation as we intend to dispose of both the writ applications with appropriate directions to the Principal Commissioner of Customs, Mundra, Commissionerate (Kutch).
6 We have heard Mr. Chiranjeev D. Tandon, the learned counsel appearing for the writ applicants and Mr. Devang Vyas, the learned Additional Solicitor General of India along with Mr. Nikunt Raval, the learned Standing Counsel appearing for the respondents.
7 The impugned communication dated 4th November 2020 (Annexure : H, page : 126) reads thus:
F. No.VIII/48-77/EXP/Amd-Yogesh/CHM/2020-21/5301 dated Page 2 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022 C/SCA/15720/2020 ORDER DATED: 10/02/2022 4.11.2020 To, M/s. Yogesh Balkrishna Jagdale, House NO.982, A/P Ajanale, Tal. Sangola, Dist-Solapur Maharashtra-413307 Subject : Amendment Export under sec. 149 of Customs Act, 1962 -
Reg.
Please refer to your letter dated 17.07.2020 and CB M/s. Ashapura Shipping Agency letter dated 17.10.2020 received by this office on 06.10.2020 requesting for amendment under Sec. 149 of Customs Act, 1962 in below mentioned shipping bills.
Sr. Shipping Bill No. / Date From To
No.
1 1437465 dated 17.02.2020 MEIS Scheme : N MEIS Scheme : Y
2 1437511 dated 17.02.2020 MEIS Scheme : N MEIS Scheme : Y
3 1495966 dated 18.02.2020 MEIS Scheme : N MEIS Scheme : Y
4 1496175 dated 18.02.2020 MEIS Scheme : N MEIS Scheme : Y
5 1496203 dated 18.02.2020 MEIS Scheme : N MEIS Scheme : Y
In this connection, it is to inform you that the competent authority has not considered the sought amendment in view of public Notice Nos.40/2015 dated 09.10.2015, 47/2015-20 dated 08.12.2015 and 09/2015-20 dated 16.05.2016 issued by the DGFT and accordingly, the said shipping bills are required to be transmitted to DGFT. You are therefore, advised to approach your jurisdictional RA, DGFT for further necessary guidance in the matter.
This issues with the approval of the Deputy Commissioner, Your Sincerely, sd/-
Superintendent of Customs (Export) Customs House, Mundra."
8 The impugned communication dated 4th December 2020, which is at page : 127 of the paper book, reads thus:
F. No.VIII/48-1063/EXP/AMD-Yogesh/CHM/2020-21 dated 4.12.2020 Page 3 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022 C/SCA/15720/2020 ORDER DATED: 10/02/2022 To, M/s. Yogesh Balkrishna Jagdale, House NO.982, A/P Ajanale, Tal. Sangola, Dist-Solapur Maharashtra-413307 Subject : Amendment Export under sec. 149 of Customs Act, 1962 - Reg.
Please refer to your dated 09.11.2020 and your CB M/s. Ashapura Shipping Agency letter dated 09.11.2020 received by this office on 09.11.2020 requesting for amendment under Sec. 149 of Customs Act, 1962 in below mentioned shipping bills.
Sr. Shipping Bill No. / Date From To
No.
1 1542614 dated 20.02.2020 MEIS Scheme : N MEIS Scheme : Y
2 1542718 dated 20.02.2020 MEIS Scheme : N MEIS Scheme : Y
3 1543227 dated 20.02.2020 MEIS Scheme : N MEIS Scheme : Y
In this connection, it is to inform you that competent authority has not considered the sought amendment in view of public Notice Nos.40/2015 dated 09.10.2015, 47/2015-20 dated 08.12.2015 and 09/2015-20 dated 16.05.2016 issued by the DGFT and accordingly, the said shipping bills are required to be transmitted to DGFT. You are therefore, advised to approach your jurisdictional RA, DGFT for further necessary guidance in the matter.
This issues with the approval of the Deputy Commissioner, Your Sincerely, sd/-
Superintendent of Customs (Export) Customs House, Mundra."
9 Mr. Tandon, the learned counsel appearing for the writ applicant invited the attention of this Court to few orders passed by a Coordinate Bench in the case of Oriental Carbon & Chemicals Ltd. vs. Union of India [2021 (377) ELT 850 (Guj)] and the other is in the case of Bombardier Transportation India Pvt. Ltd. vs. Directorate General of Foreign Trade [2021 (377) ELT 489 (Guj)].
Page 4 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022C/SCA/15720/2020 ORDER DATED: 10/02/2022 10 Mr. Tandon has also relied upon one Division Bench decision of the Bombay High Court in the case of Portescap India Pvt. Ltd vs. Union of India [2021 (376) ELT 161 (Bom)]. All these judgements have been relied upon by Mr. Tandon to make good his submission that his client is entitled to seek the benefit under the MEIS being an exporter & otherwise eligible.
11 Mr. Tandon has also brought to our notice a Notification No.53/2015-2020 dated 1st February 2022 which clarifies that the last date of submitting applications under MEIS, SEIS, ROSCTL and ROSL, which was earlier notified to be 31st January 2022, has been extended by 28th February 2022. The apprehension of Mr. Tandon is that once the due date i.e. 28th February 2022 passes by, then probably, his client may not be extended the benefit of the scheme.
12 The plain reading of the two impugned communications would indicate that the Principal Commissioner wants the shipping bills to be looked into by the DGFT. The writ applicant has been informed to approach its jurisdictional RA, DGFT for further necessary guidance in the matter.
13 We are of the view that whether to permit the necessary amendments in the shipping bills would be within the purview of the Commissioner of Customs himself and not the DGFT. It is only if the Commissioner of Customs permits such amendments in the shipping bills, then the DGFT would come into picture. It is also not clear from the impugned communications as to why such amendments have been declined. No reason has been assigned.
14 In such circumstances referred to above, we quash and set aside Page 5 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022 C/SCA/15720/2020 ORDER DATED: 10/02/2022 both the communications dated 4th November 2020 and 4th December 2020 and remit the matter to the Principal Commissioner of Customs, Mundra, Commissionerate (Kutch) to look into the issue a fresh and take an appropriate decision whether the writ applicants are entitled to claim the necessary amendments in the shipping bills. For this purpose, the Principal Commissioner of Customs shall also give an opportunity of hearing to the writ applicants in person. The Principal Commissioner shall also keep in mind the various judgements which are on record as regards the subject matter. Keeping in mind that the deadline is 28 th February 2022, we direct the Principal Commissioner to give hearing to the writ applicants at the earliest and take a final decision by passing an appropriate reasoned order by 23rd February 2022. If for some reasons, the decision that may be taken by the Principal Commissioner is adverse to the writ applicants, then it shall be open for the writ applicants to once again come before this Court.
15 With the aforesaid, both the writ applications are, accordingly, disposed of.
(J. B. PARDIWALA, J) (NISHA M. THAKORE,J) CHANDRESH Page 6 of 6 Downloaded on : Fri Feb 11 21:05:10 IST 2022