Ashwini Ashish Dighe Vs Union of India (Bombay High Court)
It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition. In the absence of the same, the Court need not entertain the pleadings and submissions so made. The Hon’ble Supreme Court in Bharat Singh & Ors. Vs. State of Haryana & Ors.,2 at Paragraph 13, has held as under:
” 13. … In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the court will not entertain the point. In this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.”
A similar view has been reiterated by the Apex Court in Larsen & Toubro Ltd. Vs. State of Gujarat,3 National Buildings Construction Corpn. Vs. S. Raghunathan,4 Ram Narain Arora Vs. Asha Rani,5 Chitra Kumari Vs. Union of India,6 State of U.P. v. Chandra Prakash Pandey,7 Rajasthan Pradesh Vaidya Samiti Vs. Union of India,8 and Indian Young Lawyers Assn. Vs. State of Kerela.9
In the case at hand, the Petitioner has pleaded in the Petition about its transaction for export of goods with the Overseas Buyer but has not produced a single document evidencing the said transaction / authorization from the Overseas Buyer.
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.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. 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 Trade – for issuance of Duty Credit Scrip under MEIS as envisaged under the FTP 2015-20 in respect of some of the export goods which were delivered to the Overseas Buyer through the FTWZ and were subsequently exported.
5.5. Respondent No. 4 issued Duty Credit Scrip no. 3119015316 dated 28.07.2017 to the Petitioner under which the Petitioner was entitled to import goods / raw materials free of customs duties to the extent of Rs.10,58,375.00, subject to the conditions specified therein.
5.6. Thereafter, Petitioner made four further applications in October 2017 to the Respondent No. 4 for grant of Duty Credit Scrips under MEIS in respect of the remaining export goods that were delivered to the Overseas Buyer through the FTWZ and which were subsequently exported to Taiwan. The details of the applications are as under:
