Procedural lapses corrected under law do not extinguish substantive rights under export benefit schemes.

ORDER :

1. Leave granted.

2. This appeal calls in question the judgment of the High Court of Judicature at Bombay, Nagpur Bench, rendered on 02.08.2021 in Writ Petition No. 4095 of 2019, by which the writ petition instituted by the appellant was dismissed. The High Court took the view that the error which had crept in while filing of shipping bills was attributable to the customs broker, and that the appellant, if so advised, could pursue his remedies against the broker but no relief could be granted in exercise of writ jurisdiction.

3. The facts are largely undisputed. The appellant is a private company engaged in the export of corn starch. During the period between 22.07.2017 to 05.10.2017, the appellant effected 54 (fifty-four) shipping bills under Serial No. 467 of Appendix 3B to the Foreign Trade Policy (FTP) 2015–20 and was eligible for incentive under the Merchandise Exports from India Scheme (hereinafter referred to as “MEIS”) contained in Chapter 3 of the Policy.

4. For each of these consignments, shipping bills were filed electronically on the ICEGATE platform through the appellant’s customs broker. It so happened that in the column requiring a declaration of intent to claim reward, the default entry “No” which was to be altered as “Yes” was not done by Customs broker. This inadvertent omission, though clerical in nature, prevented the shipping bills from being transmitted to the repository of the Directorate General of Foreign Trade (DGFT). The consequence was that the appellant’s claim for MEIS reward could not be processed electronically.

5. On discovering the error, the appellant addressed a representation dated 13.03.2018 to the Regional Authority of DGFT. At the same time, an application was made before the Deputy Commissioner of Customs, Mundra, invoking Section 149 of the CUSTOMS ACT , 1962. By an order dated 08.06.2018, the Deputy Commissioner allowed the amendment of all shipping bills, so that the declaration “No” was substituted by “Yes”. The fact of this correction is not in dispute.

6. Despite the correction, when the appellant pursued the matter with DGFT, it was informed that the system permitted no manual intervention and that unless the shipping bills were originally transmitted with the entry “Yes”, they could not be processed. The appellant as a consequence, was compelled to approach the Policy Relaxation Committee (hereinafter referred to as “PRC”) on 05.12.2018. The PRC, however, by a cryptic email dated 15.03.2019, rejected the claim, stating merely that no merit or hardship was made out. No reasons were assigned, nor was the appellant afforded an opportunity of being heard.

7. Aggrieved thereby, the appellant instituted Writ Petition No. 4095 of 2019 before the Nagpur Bench of the Bombay High Court. During its pendency, a Division Bench of the Bombay High Court delivered its judgment in Portescap India Private Limited v. Union of India & Others, (2021) SCC OnLine Bom 285 on 02.03.2021, dealing with an identical issue. A pursis was filed by the appellant bringing the judgment to the notice of the Court. Nonetheless, by its judgment dated 02.08.2021, the High Court dismissed the writ petition.

8. We have heard Learned Counsel, Mr. Gagan Sanghi, appearing for the Appellant and Shri S. Dwarakanath, Additional Solicitor General, appearing for the Respondents. Learned counsel for the appellant submitted that the exports were genuine, covered under the notified products in Appendix 3B, and that the intention to claim MEIS was evident from the invoices. It was urged that once the Customs authority had corrected the shipping bills under Section 149 , the bills stood regularised in law and were required to be acted upo