The rejection letter for MEIS benefits is appealable under Section 15 of the Foreign Trade Act, requiring a speaking order from the adjudicating authority.

JUDGMENT :

JITENDRA JAIN, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner is challenging an Order-in-Appeal dated 10 November 2023 passed by the Additional Director General of Foreign Trade (ADGFT) whereby the said authority has refused to entertain the appeal filed by the petitioner on the ground that the rejection letter issued by the Joint Director General of Foreign Trade (JDGFT) is not a decision or order passed by the adjudicating authority and since Section 15 of Foreign Trade (Development Regulation) Act 1992 provides for an appeal from an order made by the adjudicating authority, the appeal is not admissible.

Brief facts:

2. The petitioner is engaged in the business of manufacturing optical fibers. The petitioner applied for issuance of duty credit scrip under the Merchandise Export from India Scheme (MEIS) with respect to the goods exported to an overseas buyer at UAE but on the instructions of overseas buyer the goods were warehoused in the Free Trade and Warehousing Zone (FTWZ) Unit at Andhra Pradesh.

3. The above transactions were for the period January 2016 to March 2016. The application made by the petitioner came to be rejected on 3 June 2020 and the said rejection was challenged before this Court in Writ Petition No. 5156 of 2021. The Co-ordinate Bench of this Court passed a detailed order and observed that in the absence of documentary evidence, MEIS benefit cannot be granted merely on the basis of pleadings which are prima facie insufficient on the face of record. However, after upholding the rejection order, the coordinate bench granted the petitioner one more opportunity to approach the respondents by filing a fresh application for MEIS benefit along with the entire documentary evidence pertaining to the petitioners’ transaction with the overseas buyer. Para 12 and 12.1 of the said order read as under:

12. In view of absence of documentary evidence, and the findings and discussion hereinabove, the Petitioner cannot be granted MEIS benefit merely on the basis of pleadings which are prima facie insufficient on the face of record. Hence the Petition must fail.

12.1. The impugned order dated 03.06.2020 deserves to be upheld. However, since it is the Petitioner's case that it has received consideration in foreign exchange from its overseas buyer against the export goods and is eligible for MEIS benefit, the Petitioner is given one more final opportunity to approach the Respondents by filing a fresh application for seeking MEIS benefit along with the entire documentary evidence pertaining to the Petitioner's transaction with Technocraft Engineering LLC, that is the Petitioner's purported overseas buyer, located in Dubai, UAE, along with: (i) Bills of Receipt; (ii) Bills of Export of Goods; (iii) Export Invoices; (iv) with the Overseas Buyer to deliver the Exp. Dt claimed nor been granted benefit under MEIS in regard to the instant transaction; (vii) Shipping Bills; (viii) Purchase Orders and (ix) Tax Invoices. Petitioner shall make the application within two weeks from the uploading of the copy of this judgment and order. In the event such an application is made, the same shall be considered strictly in accordance with law by the Competent Authority/Respondents by according an opportunity of personal hearing to the Petitioner and a speaking order shall be passed.

4. Pursuant to the above, the petitioner applied to JDGFT on 27 January 2022, along with the documentary evidence. The said application and documentary evidence are on pages 164 to 244 of the present petition.

5. The above-referred application came to be rejected by JDGFT vide communication dated 9 December 2022 by relying upon paragraph 3.06 of the Foreign Trade Policy, which provides those exports made by units under FTWZ are ineligible for duty credit scrip entitlement. The rejection letter further observes that the documents were examined, and no co-relation would be established to substantiate the petitioner's contentio