Point of Law: Did the CESTAT fall into error in upholding the denial of the petitioner’s claim for amendment of its shipping document under section 149 of the Customs Act.

ORDER :

SONIA GOKANI, J.

1. By way of the present petition under Article 226 of Constitution of India, writ of mandamus or any other appropriate writ is sought by the petitioner to set aside the order of respondent No.3 bearing No.VIII/4847/ EXP/MEIS/CHM/1920 dated 10.06.2019.

2. The facts bereft of details are as follows:

2.1 The petitioner regularly exports in his capacity of Merchant Exporter and is exporting various items purchased from different manufactures and traders. The scheme was introduced being the Merchandise Exports from India Scheme (‘MEIS’ for short). It specified the entitlement and eligibility of various groups and also the benefits of the percentage. In terms of the Public Notice No.2 of 2015-20 dated 01.04.2015, Sri Lanka was placed in group-C. Although the benefit of MEIS was not made available to the product of vitrified tiles if exported to Sri Lanka.

2.2 It is averred by the petitioner that a Public Notice had been amended on 04.05.2016 being the Public Notice No.6 of 2015-20 and MEIS scheme was extended to the export made to Sri Lanka at the rate of 2% interest. The interest was further amended on 22.09.2016 vide Public Notice No.32 of 2015-20 and the rate of percentage was enhanced to 3%. According to the petitioner, both the amendments of 04.05.2016 & 22.09.2016 in Public Notices did not come to his knowledge. However, he had exported various consignments to Sri Lanka from the year 2015 to 2020, but on account of his lack of knowledge, he did not claim any benefit of MEIS scheme. On his being aware of such Public Notices, he made a request to the concerned officer to allow him to amend the shipping bills under the provisions of Section 149 of the Customs Act, 1962; however, such request was not acceded to and the rejection came by referring to some Public Notices.

2.3 It is averred by the petitioner that the policy permits the eligibility of the goods which had been exported by the petitioner under the MEIS scheme and it is only the procedural lapse which has resulted into his being denied the benefit of the said scheme. The petitioner, has, therefore, approached this Court emphasising that mere lapse of procedural law shall not take away his substantial benefit by seeking the following prayers:

“12. a. Your Lordships be pleased to issue a writ mandamus of or in the nature of mandamus quashing and setting aside the order passed by the Respondent No.3 issued from File Number VIII/48-47/EXP/MEIS/CHM/19-20 Dated 10.06.2019.

b. Your Lordship be pleased to issue a writ of Prohibition or in the nature of Prohibition thereby completely and permanently prohibiting Respondent No.3 from taking any action against the petitioner, for disturbing the benefits available.

c. Such other and further relief as deemed just and expedient be granted.”

2.4 Notice came to be issued on 16.10.2019 and the respondents appeared and filed affidavit-in-reply for and on behalf of respondent Nos.2 and 3. Assistant Commissioner, Customs, Mundra has raised the challenge of availability of alternative remedy so also for other purpose.

3. According to the respondents, the petitioner took more than one year to realise the publication of the notices which have permitted the benefits of MEIS export policy to the petitioner. The Public Notices have been issued by the Director General of Foreign Trade ('DGFT' for short), which is also binding on Central Board of Indirect Taxes and Customs ('CBIC' for short). It is further contended that the guidelines issued in Public Notices shall have to be followed by the CBIC and therefore, the rejection of the claims is provided under the said Public Notices. The Public Notices No.40/1520, 47/1520 and 9/1520 issued by the DGFT also can be applied; however, the custom authority needs to prescribe to learn to follow the procedure. The Public Notices would permit the benefits to those exports which had been made from 01.04.2015 to 30.09.2015; whereas in the instant case, the exports have been made from 12.05.2016