Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dipankar Datta, Milind N. Jadhav, JJ.
Ashwini Ashish Dighe, Indian inhabitant, carrying on business in the name and style of
Sunteck Telecommunications - Petitioner
Versus
The Union of India, through the Secretary, Department of Commerce, Ministry of Commerce & Industry, Udyog Bhavan, New Delhi and ors. – Respondents
Writ Petition No. 5156 of 2021
Decided On : 20-01-2022

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Prasad Paranjape a/w. Mr. Sanjeev Nair i/by PDS Legal
For the Respondent: Mr. Pradeep S. Jetly, Senior Counsel a/w. Mr. J.B. Mishra

Point of Law : It is a settled proposition of law that a party has to plead case and produce/adduce sufficient evidence to substantiate his submissions made in the petition. In the absence of the same, Court need not entertain the pleadings and submissions so made.

Headnote:
Constitution of India, 1950 – Article 226 and 227 - Foreign Trade (Development and Regulation) Act, 1992 - Section 11 (2) - Import goods/raw materials free of customs Duties - Foreign exchange – Merchandise Export from India Scheme - Issuance of Duty Credit Scrips – Benefits of - pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari and/or any other appropriate writ, order or direction under Article 226 and 227 of Constitution calling for records and papers of the Petitioner's case and after examining legality and validity thereof be pleased to quash and set aside order passed by Respondent No.3 – And direction to Respondents themselves, their officers and subordinates.
Finding of the court :
Section 3 (1) of Chapter II of the SEZ Act refers to establishment of Special Economic Zone either for manufacture of goods, or rendering services, or for both as an FTWZ – The reference to the Overseas Buyer is to a company called "Ashteck Global FZE", which on scrutiny shows that it is located in Ajman, UAE. There is no reference to Technocraft Engineering LLC, Dubai, UAE in the reference to the Overseas Buyer is to a company called "Ashteck Global FZE", which on scrutiny shows that it is located in Ajman, UAE. There is no reference to Technocraft Engineering LLC, Dubai, UAE in the - merely offered a facility of warehousing to Petitioner therein to facilitate export. None of the above issues have been pleaded, and effectively proved by Petitioner, save and except one shipping bill which does not evidence the aforesaid position in case of Petitioner - Absence of documentary evidence, and findings and discussion hereinabove, Petitioner cannot be granted MEIS benefit merely on the basis of pleadings which are prima facie insufficient on the face of record -Application for seeking MEIS benefit along with entire documentary evidence pertaining to the Petitioner’s transaction with Technocraft Engineering LLC, that is Petitioner’s purported overseas buyer, located in Dubai - Impugned order upheld.
Result : Writ Petition disposed of

JUDGMENT :

Milind N. Jadhav, J.

1. Rule. By consent of parties heard finally. Heard Mr. Prasad Paranjape along with Mr. Sanjeev Nair, learned counsel appearing on behalf of the Petitioner, and Mr. Pradeep S. Jetly, learned senior counsel along with Mr. J. B. Mishra on behalf of the Respondents.

2. Petitioner is the proprietor of Sunteck Telecommunications carrying on business of manufacturing optical fibres and having its registered office at GAT No. 2347/B, Pune-Nagar Road, Opp. Hotel Parijat Dhabha, Wagholi, Taluka Haveli, District Pune – 411 207.

3. By the present Writ Petition, the Petitioner has prayed for the following reliefs:

"a) that this Hon'ble Court may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari and/or any other appropriate writ, order or direction under Article 226 and Article 227 of the Constitution of India calling for the records and papers of the Petitioner's case and after examining the legality and validity thereof be pleased to quash and set aside the order dated 03.06.2020 passed by the Respondent No.3;

(b) that this Hon'ble Court be pleased to issue a mandamus or a writ in the nature of mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers and subordinates to forthwith:

(i) withdraw and/or cancel impugned order dated 03.06.2020 passed by the Respondent No.3;

(ii) allow the Application File Nos: (i) 31/21/090/83127/AM18 dated 06. 10.2017 for Rs.13,79,489, (ii) 31/21/090/83130/AM18 dated 06. 10.2017 for Rs.24,30,571,

(iii) 31/21/090/83131/AM18 dated 06. 10.2017 for Rs.26,31,313 and

(iv) 31/21/090/83133/AM18 dated 06. 10.2017 for Rs.2,83,604 of the Petitioner and issue the Duty Credit Scrip under MEIS under FTP 2015-20 as applied by the Petitioner for exports effected by him."

4. Petitioner has challenged the order dated 03.06.2020 passed by the Respondent No. 3 – the Director General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, New Delhi – by which the Petitioner’s applications for issuance of Duty Credit Scrips under the Merchandise Export from India Scheme (for short: “MEIS”) have been rejected. Petitioner has further prayed for considering the Petitioner’s case for seeking Duty Credit Scrips under the MEIS in accordance with law.

5. Before we advert to the submissions made by the respective counsel, it will be apposite to refer to the relevant facts briefly:

5.1. Respondent No.1 -The Union of India, through the Secretary, Department of Commerce, Ministry of Commerce & Industry, New Delhi – announced MEIS as part of the Foreign Trade Policy (FTP) 2015-20 in order to accelerate growth in export of goods from India in exercise of powers conferred upon it under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 (for short : "FTDR Act").

5.2. Petitioner, in the regular course of business, purportedly supplied Single Mode Optical Fibers G642D -Natural (for short "the export goods") to an Overseas Buyer, Technocraft Engineering LLC, Dubai, UAE, (for short "the Overseas Buyer"). As per instructions of the Overseas Buyer, Petitioner delivered the export goods to Siddhartha Logistics Co. Pvt. Ltd., a unit located in the Free Trade and Warehousing Zone (FTWZ) in Sri City Multi-Product SEZ/FTWZ, Chittor District, Satyavedu Mandal, Andhra Pradesh (for short "the FTWZ unit"), under four bills of export bearing no. 0000004 dated 08.01.2016, no. 0000016 dated 08.02.2016, no. 0000027 dated 02.03.2016 and no. 0000028 dated 03.03.2016.

5.3. According to the Petitioner, the export goods were warehoused in the FTWZ unit on instructions of the Overseas Buyer and were later exported by the FTWZ unit to Taiwan.

5.4. Petitioner made an application dated 15.06.2017 to the Respondent No. 4 – the Joint Director General of Foreign Tr

Click Here to Read the rest of this document

2022 Supreme(Bom) 12

Point of Law : It is a settled proposition of law that a party has to plead case and produce/adduce sufficient evidence to substantiate his submissions made in the petition. In the absence of the same, Court need not entertain the pleadings and submissions so made.

Cases Referred (8)