Biren Vaishnav, J.

1. Rule. Mr. Harsheel Shukla, learned advocate appearing for respondents waive service of notice of rule. With the consent of learned advocates for the parties, matter is taken up for final hearing today.

2. This petition under Article 226 of the Constitution of India has been filed with the following prayers:

"a) That this Hon'ble Court be pleased to issue against the Respondents a Writ of Mandamus under Article 226 of the Constitution of India calling for the records of the Petitioners' case relating to the impugned Orders/decisions (Annexure-A (Colly.) and after looking into the same and the legality thereof, this Hon'ble Court be pleased to quash and set aside the impugned Orders/decisions (Annexure-A(Colly.)

(a/1) That this Honourable Court may be pleased to issue a writ of mandamus or any other such writ, order, direction under Article 226 of the Constitution of India against respondents directing the respondents to accept the applications that may be made for the grant of MEIS scrips manually for the 68 shipping bills which are subject matter of the impugned orders/ decisions dated 25.9.2018, 21.5.2019, 27.10.2020 and 26.11.2020

b) That this Hon'ble Court be pleased to issue a Writ of Mandamus under Article 226 of the Constitution of India, ordering and directing the Respondents to Respondents to issue to the Petitioner No.1, MEIS Scrips against the exports undertaken by the Petitioner No.1 under the Shipping Bills, details whereof are set out in Annexure D hereto;"

3. Facts in brief leading to the filing of the present petition is as under:

3.1. It is the case of the petitioner that during the period February 2016-April 2019, the Petitioner No.1 undertook exports of goods manufactured at its factories at Hazira, Dahej, Jamnagar, Silvasa. The goods exported were eligible for grant of MEIS scrips under Para 3.4. Of the Foreign Trade Policy 2015-2020.As per para 3.3. Of the Policy the objective of the MEIS Scheme was to promote manufacture of the goods/products which are notified in Appendix 3B.

3.2. For claiming benefits under the MEIS Scheme, the claimant had to follow the procedure set out in Para 3.14 of Chapter 3 of the Handbook Of Procedures 2015- 2020.As per the said procedure for the declaration of intent for EDI Shipping Bills for claiming the rewards under the MEIS Scheme the claimant has to mark/tick "Y" in the rewards column of the Shipping Bills so as to claim the rewards.

3.3. It is the case of the petitioner that the default setting in respect of the claim for benefit of an export promotion scheme in "N" (NO) and therefore it requires unchecking the the bos reading "NO" to tick/mark the box reading "YES" for claiming the export benefits.

3.4. It is the case of the petitioner that out of over 55,000 shipping bills filed by the Petitioner No.1 during the aforesaid period in about 0.12% cases (68 Shipping Bills),the default setting "NO" was inadvertently not unchecked by the Customs Brokers and/or the Petitioner No.1's staff at the time of filing of the Shipping Bills and therefore the Bills were filed with the default setting "NO". Therefore according to the Petitioners there was a mistake in unchecking the box "NO".

3.5. The Petitioner approached the Customs Authorities seeking amendment in the Shipping Bills as there is no system or mechanism to carry out the amendment. The petitioner no.1 approached the Respondent No.2 by various letters/ applications dated 6.7.2018, 21.09.2018, 23.10.2018, 21.06.2019 etc for grant of MEIS scrips based on the amendment certificates. The Petitioner was heard by the Policy Relaxation Committees and in one of the Committee meetings dated 25.2.2020 the Petitioner No.1's application for grant of MEIS was rejected holding that the Shipping Bills which are ticked with "NO" do not get electronically transmitted on-line in the automated environment and therefore no case was made out to claim MEIS scrips.

4. Mr. Mihir Joshi, learned Senior Advocate appearing with Mr. Nisarg Desai and Ms. Pravalikha Batthini, learned advocates for Gandhi Law Associates would submit that several decisions of this Court as well as those of the Kerala High Court and the Madras High Court have held that where there was an inadvertent mistake in the declarations with intent of the claim of MEIS directions were issued to grant MEIS scrips. The respondents in not considering the claims clearly ignored these decisions and hence the prayers in the petition deserve to be granted.

4.1. Following decisions were pressed into service by learned Senior Advocate in support of his submissions.

1. Bombardier Transportation India P. Ltd vs. Directorate General of Foreign Trade [Judgment dated 17.02.2021 in Special Civil Application No. 11038 of 2020 of this Court [2021(3) TMI 9-GUJ HC]]

2. Global Calcium P. Ltd Versus Asstt. Commr of Customs (EDC), Chennai [2019 (370) ELT 176 (Mad)]

3. Pasha International Versus Commissioner of Customs, Tuticorin [2019 (365) ELT 669 (Mad)] [LQ/MadHC/2019/164]

4. P.A. Footwear P. Ltd Versus Director General of Foreign Trade, New Delhi [2020 (372) ELT 660 (Mad)]

5. Commissioner of Customs, Cochin Versus Mangalath Cashews [2020 (373) ELT 149 (Ker)].

6. Gokul Overseas Versus Union of India [2020(373) E.L.T.49 (Guj.)]

7. Biocon Limited Versus Director General of Foreign Trade, New Delhi [2022 (380) ELT 252 (Kar.)] [LQ/KarHC/2022/4907 ;]

8. Indian Metals and Ferro Alloys Limited Versus Director General of Foreign Trade [2022 (380) ELT 134 (Ori.)] [LQ/OriHC/2021/628]

9. Jindal Saw Limited Versus Chief Commissioner of Customs [2022 (380) ELT 574 (Guj.)] [LQ/GujHC/2021/22112]

10. L and T Hydrocarbon Engineering Limited Versus Union of India [Order dated 15.12.2021 in SCA No. 7707 of 2021 of this Court]

11. Commissioner of Customs versus N.C. John and Sons Private Limited [2022 (380) ELT 241 (SC)] [LQ/SC/2022/1819]

5. Mr. Harsheel Shukla, learned Counsel for the respondents relying on the affidavit would submit that the eligibility to claim benefits under the MEIS Scheme depends upon the fulfilment of all notified Procedural Provisions as outlined in the Foreign Trade Policy (FTP) 2015-2020 and the Extant Handbook of Procedures (HBP) 2015-2020. The entitlement is allowed only when the set procedures are followed.

5.1. Mr. Shukla, learned Counsel would submit that vide Public Notice dated 16.5.2016 marking "YES" in the Shipping Bills was made mandatory and it was notified that such marking has to be made at the time of filing of the Shipping Bills. Only such bills would be transmitted online from the Customs to the DGFT.

5.2. Mr. Shukla would rely on Para 3.14 of the Procedure and submit that only such Bills which were marked "YES" are transmitted by ICEGATE server of the Customs to the DGFT. The Petitioner had routinely filed Bills claiming the benefit under MEIS and if through a inadvertent error now the Petitioner who had clicked "NO" then no action can be taken as no data of the shipping bills as such would be reflected in the DGFT server. He would submit that marking of "Y" or "N" is not merely a procedural requirement but is a substantive one from the perspective of risk management at the time of export. The Shipping Bills marked "N" escape the evaluation and the assessment system. He therefore would submit that the petition deserves to be dismissed.

6. The Division Bench of this Court in the case of Bombardier Transportation India P. Ltd. (supra) has held as under:

"17. Thus, as stated hereinabove, the respondent no.4, after due verification of the documentary evidence existing at the time of the export duly amended the shipping bills manually from "MEIS SCHEME - "No" to MEIS SCHEME "YES" by way of Amendment Certificate dated 09.10.2018. Hence, the writ- applicant now having satisfied the MEIS conditions i.e. exported Notified Goods (Metro Coaches) to Notified Territory (Australia) cannot be deprived of the necessary MEIS benefits.

18. The entitlement to MEIS benefits is governed by the Chapter III of the Foreign Trade Policy 201520 (FTP 201520) and accordingly, the scheme for the grant of the benefit will be governed thereunder. In other words, the substantive rights and obligations are created by the MEIS Scheme under Chapter III of the FTP. It also becomes apparent from Para 3.04 of the Policy that once the notified goods are exported to a notified market, the exporter becomes entitled to the MEIS benefits. Thus, entitlement, restriction thereof and conditions, if any, have to be found within the letters of the Chapter III of the FTP 201520. Thus, the writ applicant becomes entitled to the MEIS benefits once it exports the notified goods to the notified market. This benefit cannot be defeated due to procedural infirmity of missing to mark/tick "Y" in the rewards column.

19. It is further submitted that the issue in the present writ application is no longer res integra. Various High Courts including this Hon'ble High Court have already permitted the amendment of shipping bills that have been erroneously ticked as 'No' instead of 'Yes' in the MEIS benefit column.

A Division Bench of the Hon'ble Kerala High Court in the case of Commissioner of Customs v. Mangalnath Cashews, Order dated 4th March 2020 in W.A. Nos. 97 and 118 of 2020; 2020 (3) TMI 1066 was considering a similar issue. The Kerala High Court held as follows:

"2. Denial of a claim for export benefit under the Merchandise Exports from India Scheme(MEIS) envisaged under the Foreign Trade Policy,201520, was under challenge in these writ petitions. The reason for denial of the claim was that, the writ petitioners have omitted to check the Box stating 'Yes', indicating their intention to avail reward under the Scheme, in the specific Box provided in the software intended for uploading details to the web portal of the Central Government. The learned Single Judge found that, the default setting in the software indicate 'No', and it is only due to an inadvertent mistake on the part of the writ petitioners that the box stating 'Yes' was omitted to be checked. But it was noticed that, in the column meant for description of the goods, the writ petitioners had clearly indicated their intention to avail the benefit of MEIS. The learned Single Judge specifically noted that, in the shipping bill produced that the writ petitioners have specifically mentioned that 'WE INTEND TO CLAIM REWARD UNDER MEIS'. Therefore it was found that the denial of the claim to avail the benefit could not have been done in a mechanical manner, merely because there was a technical lapse on the part of the exporter in not checking a particular box in the web portal; more so when there was sufficient indication in other details entered therein about the intention of the exporter to claim the rewards. Therefore the writ petitions were disposed of by directing the appellants as well as the Director General of Foreign Trade to consider the claim of the writ petitioners for export benefit, afresh, in the light of the observations contained in the judgment and to the grant export benefits, if on an overall consideration of the details furnished by the writ petitioners the intention to claim the benefit of the MEIS was seen manifested at the time of export. The claim was directed to be considered afresh within a period of one month from the date of receipt of a copy of the judgment, after hearing the writ petitioners. In the meanwhile, the Customs Authorities were directed to issue necessary 'No Objection Certificate' in favour of the writ petitioners for processing the claim afresh.

3. Learned counsel for the appellants contended that, since the writ petitioners have not checked the 'Yes' Box in the relevant column, indicating their intention with respect to claiming of the benefit under MEIS, necessary verification of the export consignment was not done at the relevant time; and that verification of the consignment is not possible as of now. We are not persuaded to accept the said contention. Even if there exists no claim for the benefit under the MEIS, naturally there will be physical verification with respect to the goods consigned by the exporter. Therefore the details of the shipping as well as the necessary verification preceding the export were already done at that time would clearly indicate the identity of the goods exported. If the identity of the goods exported would reveal that the goods exported are those goods with respect to which the benefit under MEIS is allowable, there is no necessity for further physical verification for deciding the question of allowing the claim.

4. Learned counsel further pointed out that, by virtue of a Circular issued by the Director General of Foreign Trade, instruction was given to allow such claims in cases where the exporters had omitted to tick 'Yes' in the portal, only for a limited period of six months from the date of introduction of the Scheme. We do not find any logic in putting such a limitation. As already found by the learned Single Judge, the intention was explicit from other details uploaded in the portal and also from the documents relating to the shipping. Therefore, the omission seems to have been quite inadvertent.

There is no justification in denying the claim, based on such an inadvertent omission. In the matter of condoning such an omission, there cannot be a discrimination between exporters who made the claim within six months and those who have raised the claim after six months of introduction of the Scheme. "

20. The Madras High Court in the case of M/s. Pasha International v. The Commissioner of Customs, Order dated 10th January 2019 in WP (MD) No. 25252 of 2018 and 22857 of 2018; 2019 (2) TMI 1187 has also decided the issue similarly.

21. The issue has also been decided in various other cases namely:

(i) M/s. P.A. Footwear Pvt. Ltd. Vs. DGFT and Ors., 2020 (3) TMI 273 Madras High Court

(ii) M/s. Davinci Leather Pvt. Ltd. Vs. The Commissioner of Customs, 2020 (2) TMI 1266 Madras High Court

(iii) M/s. Global Calcium Private Limited Vs. The Assistant Commissioner of Customs (EDC) and Ors., 2019 (6) TMI 811 Madras High Court

(iv) Saint Gobain India Pvt. Ltd. V. Union of India, 2018 (11) TMI 536 - Kerala High Court

(v) Commissioner of Customs, Cochin v. NC John and Sons, 2020 (374) ELT 465 - Kerala High Court

22. The decisions rendered by various High Courts have not been appealed before any higher forum by any of the respondent till date.

23. The writ applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no.3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system.

24. In this regard, a reference is made to the decision in the case of Darsh Pharma Chem Pvt Ltd. v. Superintendent, Central GST, Order dated 11 March 2020 in SCA 18051 of 2019; 2020 (3) TMI 696 wherein this Court, having regard to the fact that the TRAN1 could not be filed on account of technical glitches in the electronic system, directed the respondents therein to permit the writ applicant therein to file form in TRAN1. We quote the relevant observations:

"8. Having regard to the fact that the TRAN1 could not be filed on account of technical glitches. We direct the respondent No.2 to permit the writ applicant to file form in TRAN1.

9. In view of the order referred to above, let this exercise be undertaken and completed within a period of two weeks from the date of the receipt of the writ of this order."

6.1 So also in the case of Jindal Saw Limited (supra), the Division Bench of this Court in paras 14-16 held as under:

"14. Having heard both the sides and also on a carefully considering the chronology of events, we notice that it is a genuine mistake on the part of the petitioner which has led the petitioner approaching this Court for prayer of permitting the bill manually. We notice that the respondent Nos. 1 and 2 had permitted the manual amendment of shipping bill in question being the shipping bill bearing No.5561585 dated 14.06.2018 while filing shipping bill online in EDI system of the customs inadvertently systems had got been corrected value of goods exported as has been noted by the PRC Committee in its meeting. A representation made had weighed with the said Committee. The Customs, Mundra had assessed and finalized the consignment, however, the amendment since had not been reflected in EDI systems of the DGFT, that resulted in preventing filing the MEIS claim. Hence, the Committee in its report dated 30.10.2018 had referred the matter to EDI / NISD for DGFT to make suitable provisions to grant MEIS benefits against the same shipping manually. The Committee had also reviewed on 24.09.2019 on the basis of the comments received from E- Governance and Trade Facilitation (EGTF) section and observed that the reflection of such manual amendment in the automated system is not feasible, hence, request of the firm has been rejected. The issue is more of procedural in nature than of substantive kind as the software has the limitation and it does not permit even after the manual correction of the shipping bill, the benefit to flow of MEIS Scheme as it does not recognize said manual correction, the petitioner is deprived of the benefits.

15. This Court in the case of Bombardier Transportation India Pvt. Ltd. Vs. DGFT reported in 2021(377) ELT 489(Guj.) was considering the similar issue to hold thus: "The writ applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no.3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system."

16. No technicality can mar the right of the parties which otherwise accrued under the substantive law. Here when genuineness of the export and entitlement of petitioner otherwise is not in any manner disputed, this technical glitch shall in no manner hamper the request of the petitioner of getting benefit."

6.2 In the case of L&T Hydrocarbon Engineering Limited (supra) the order reads as under:

"1. This Court issued notice on 01.07.2021 in the aforementioned petitions which have been duly served. The other side also appeared.

2. The pleadings are not as yet completed. The request is made for and on behalf of learned Additional Solicitor General Mr. Vyas to allow the respondents to complete the pleadings.

3. Noticing that the time period for physically submitting the application for export benefits is getting time barred on 31.12.2021, we would follow the order passed by us in the earlier matter particularly in Special Civil Application No. 17424 of 2021 and direct the respondents to accept the manual application without prejudice to the rights and contentions raised by the either side. The authority concerned shall also look into the same and decide subject to the final outcome of these writ petitions. This may not create equity in favour of anyone.

4. Let the pleadings be completed on or before 12.01.2022.

5. Learned senior advocate Mr. Mihir Joshi has drawn the attention of this Court to the order passed by this Court in the aforementioned petitions dated 09.12.2021. These petitions concern the MEIS benefits. The reference of the Sabka Vishwash Scheme in the order dated 09.12.2021 requires correction.

6. Matters to appear on 12.01.2022."

6.3 A Division Bench of this Court in Gokul Overseas (supra) in paras 7, 20 and 24 held as under:

"7. The respondent No.3 The Director General of Foreign Trade (DGFT), issued Public Notice No.40/20152020 dated 09.10.2015, whereby eligibility was granted under the MEIS to shipping bills, where declaration of intent 'Y' has not been marked and 'N' has been ticked inadvertently in the 'reward item box' while filing shipping bills in Customs for exports made between 01.04.2015 to 31.05.2015. Subsequently, the benefit was extended for a period beyond 31.05.2015 by Public Notice No.47/201520 dated 08.12.2015. Thus, the condition of the declaration has been relaxed from time to time even if it has been treated as a mandatory condition.

20. Mr. Dhaval Shah, learned advocate for the petitioner, submitted that rejection of the request of the petitioner to extend benefits under the MEIS on the technical ground of delay is ex facie illegal. It was submitted that the petitioner is eligible for the benefits under the MEIS subject to compliance of all the requirements prescribed under Chapter 3 of the Foreign Trade Policy 201520. The petitioner did not declare its intention to claim rewards under the MEIS while filing shipping bills; however, on realising such mistake, the petitioner immediately approached the concerned authorities for amending the shipping bills and clarified its intention, but it was not considered on the ground of delay.

24. On a plain reading of the provisions of para 3.14 of the Handbook of Procedure to Foreign Trade Policy 201520, it is apparent that the 'declaration of intent', in the manner provided for EDI shipping bills, has been made mandatory, whereas in the case of Non EDI shipping bills, such 'declaration of intent' is not stated to be mandatory. The respondents, in their affidavit in reply, have stated that the instant case is of a SEZ unit which exported the goods under free shipping bills. All the SEZ exports come under free shipping bills. Therefore, the mandatory 'declaration of intent' with effect from 01.06.2015 will not be applicable in this case. Therefore, the unit has to declare its intent for claiming benefits under the MEIS for exports made prior to 01.06.2015, that is, for the period between 01.04.2015 to 31.05.2015. As per the Foreign Trade Policy/Handbook of Procedure 2015 20, MEIS benefits were available to SEZ units with effect from 01.04.2015."

7. In light of the decisions referred to hereinabove, it is clear that the only ground on which the petitioners could not claim the benefit of the MEIS was an inadvertent mistake in clicking "NO" instead of "YES". Such an inadvertent mistake cannot disentitle the petitioners to claim the benefit of the MEIS or Merchandise Exports of India Scheme.

8. The petition is therefore allowed and the decisions denying such benefits are quashed and set aside and respondents are further directed to accept the applications made for the grant of MEIS Scrips manually for the 68 Shipping Bills which were the subject matter of the impugned orders/ decisions dated 25.09.2018, 21.05.2019, 25.2.2020, 27.10.2020 and 26.11.2020 and accordingly grant the benefits of the MEIS to the petitioners within a period of eight weeks from the date of receipt of this order. Rule is made absolute accordingly with no order as to costs.