Milind N. Jadhav,J. - (1.) Heard Mr. Bharat Raichandani a/w. Ms. Pragya Koolwal, learned counsel for the petitioner; and Mr. Pradeep Jetly, learned senior counsel a/w. Mr. Devesh Tripathi, learned counsel for the respondents.
(2.) By this petition filed under the provisions of Article 226 of the Constitution of India, petitioner has sought to challenge the rejection of its applications filed under the Merchandise Exports from India Scheme (for short "MEIS") by the respondents on the ground of mis-declaration of intent by the petitioner and thereby depriving the petitioner benefit under the said scheme. 2.1. Petitioner has however prayed for the following reliefs in the petition:- "(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondent No. 2 to issue such directions / orders to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise Exports from India Scheme to the petitioner; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality of the provisions and direct the respondents to issue such directions to the Respondents to pass such directions to the respondents to guide the petitioner by communicating the exact modification required, if any, in the form submitted by the petitioner and to allow benefit under Merchandise Exports from India Scheme to the petitioner; (c) For interim and ad-interim reliefs in terms of prayer clause (a) to clause (b); (d) For costs of this Petition; (e) For such and other reliefs as the nature and circumstances of the case may required."
(3.) Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts as pleaded:- 3.1. Petitioner is a private limited company situated in Santacruz Electronics Export Processing Zone (for short "SEEPZ"), a Special Economic Zone in Mumbai and engaged in the manufacture and export of electronic motors. Petitioner is entitled to special fiscal provisions as envisaged in the Special Economic Zone Act, 2005 (for short "SEZ Act") in respect of goods manufactured and exported by the petitioner being eligible and notified products under the MEIS. 3.2. Since 01.04.2015 petitioner has been exporting electronic motors to notified markets and claiming benefit under the MEIS in the manner prescribed under paragraph 3 of the Handbook of Procedure (HBP). For this purpose petitioner has been filing applications online using its digital signature on the Director General of Foreign Trade (for short "DGFT") portal by filing the requisite details in the appropriate form to claim reward under MEIS. The reward is received in the form of duty credit scrips. 3.3. In the present case, the exports of petitioner are made through SEEPZ i.e. the Non-EDI port. These Non-EDI (manual) shipping bills are not transmitted electronically by Customs Department to DGFT. Hence petitioner is required to manually enter the data for all such shipping bills and file MEIS applications separately on the DGFT portal in respect of each shipping bill to claim reward under MEIS after completion of export obligations. 3.4. Petitioner filed applications dated 09.03.2017 and 06.09.2017 on the DGFT portal as well as before the regional authority to claim reward under MEIS against various shipping bills. 3.5. By letters dated 31.08.2017 and 19.09.2017 respondent No.4 rejected petitioner's claim for seeking reward (duty credit scrips) under MEIS, inter alia, on the ground that petitioner had not stated its declaration of intent i.e "We intend to claim rewards under Merchandise Exports from India Scheme" on the shipping bills. 3.6. Petitioner states that similar applications filed by the petitioner for the period 2015-16 and 2016-17 for claiming reward under MEIS in respect of various shipping bills have also been rejected on the ground of absence of 'declaration of intent' on the shipping bills. 3.7. Petitioner filed representation dated 17.10.2017 before respondent No.2 and submitted a list of shipping bills on which benefit of MEIS was denied to the petitioner. Petitioner asserted that it was entitled to the reward (duty credit scrips) under MEIS and highlighted several difficulties in claiming the rewards such as:- (i) in certain specified cases (shipping bills) the DGFT portal showed that benefit under MEIS was claimed by the petitioner; (ii) in some cases there was failure to link Electronic Bank Realization Certificate (EBRC) to the shipping bills which was issued by the banks to the exporter for the purpose of claiming benefits under the scheme; (iii) in some case using the E-BRC platform, banks were electronically transmitting foreign exchange realization to the DGFT server directly; and in view thereof, petitioner was denied the benefit under the scheme. 3.8. By order dated 10.05.2018 respondent No. 4 rejected the petitioner's application for amending one such shipping bill No. 4013543 under the provisions of section 149 of the Customs Act, 1962. 3.9. Petitioner filed a second representation dated 16.10.2018 before respondent No.4 with respect to denial of benefit under MEIS due to the difficulties faced by the petitioner and sought leave to carry out amendment in the shipping bills under the provisions of section 149 of the Customs Act, 1962 (for short "the Customs Act"). 3.10. Petitioner preferred appeal before the Commissioner of Customs (Appeals) to challenge the order dated 10.05.2018. By order dated 12.02.2019, Commissioner of Customs (Appeals) dismissed the petitioner's appeal on the ground of jurisdiction, inter alia, holding that the remedy for such kind of inadvertence was not within the purview of the Customs Department under Section 149 of the Customs Act. 3.11. Petitioner filed a third representation dated 07.02.2019 before respondent No.2 highlighting the difficulties faced while claiming reward under MEIS. 3.12. Again, petitioner filed application dated 28.05.2019 with the respondents to claim reward under MEIS against various shipping bills. 3.13. Since there was no response petitioner filed a fourth representation dated 10.07.2019 with the Export Promotion Council of India highlighting the difficulties faced by the petitioner in claiming benefit under MEIS in respect of its shipping bills and denial of the same to the petitioner. 3.14. By letter dated 15.07.2019 respondent No.4 rejected the application dated 28.05.2019 seeking reward (duty credit scrips) in respect of various shipping bills under MEIS on the ground that the petitioner was not eligible to claim the reward due to absence of declaration of intent on the said shipping bills. ;