2019 (11) TMI 1496 - HC - Customs

Court upholds importer's rights under DFIA License, setting aside retrospective policy change

EASTMAN INDUSTRIES LTD. Versus UNION OF INDIA

The court granted the writ petition in favor of the petitioner, setting aside the order by the Joint Director General of Foreign Trade. The court held ... Denial of import of Natural Rubber - petitioner has submitted that amendment which has been brought in the policy w.e.f. 21-3-2017 cannot be made the basis to deny the import of Natural Rubber after the export of Automobile Tyre reinforced with Nylon Tyre Cord Warp Sheet etc. and in the presence of a valid DFIA Licence - HELD THAT:- The case set up by the petitioner has a merit because the petitioner is claiming right of redemption on the basis of export which took place between the months of June, 2015 to October, 2015, on the basis of the provisions of Clause 4.29 of DFIA in which there was no such condition that Appendix-4J prescribes three import condition for such an import. It is found that amendment has been brought on 21-3-2017 much after the export and therefore, petitioner cannot be denied the benefit which is available to him in view of SION wherein Serial No. A1667 prescribes the items of export and against that item which is sought to be imported is also prescribed i.e. ‘Natural Rubber’. Petition allowed. Issues:1. Petition for writ of certiorari to quash an order dated 10-3-2017 by the Joint Director General of Foreign Trade.2. Interpretation of Duty Free Import Authorisation (DFIA) License and Standard Input and Output Norms (SION).3. Impact of amendment in Clause 4.29(VIII) of DFIA on the petitioner's case.4. Application of policy amendments retrospectively.5. Legal significance of prior communication regarding the DFIA License issuance.6. Consideration of relevant case laws in determining the outcome of the petition.Analysis:1. The petitioner sought a writ of certiorari to challenge the order issued by the Joint Director General of Foreign Trade on 10-3-2017. The petitioner had applied for a DFIA License on 2-6-2015, which was granted on 3-10-2016, enabling the import of various items, including Natural Rubber, based on the Standard Input and Output Norms (SION).2. The petitioner exported goods between June 2015 and October 2015, as per the SION provisions. However, the respondent denied the import of Natural Rubber citing an amendment in Clause 4.29(VIII) of DFIA, which restricted imports for items specified in Appendix-4J. The petitioner argued that the amendment should not apply retrospectively and relied on relevant case laws to support their claim.3. The court considered the timing of the amendment, which occurred after the petitioner's exports and issuance of the DFIA License. The court noted that the petitioner's right to import Natural Rubber was established under the SION, and the amendment should not impact the petitioner's entitlement. Relying on precedents, the court ruled in favor of the petitioner, setting aside the impugned order dated 10-3-2017.4. The respondent contended that a communication on 26-10-2015 informed the petitioner of a mistake in granting permission on 3-10-2016. However, the court rejected this argument, emphasizing that the communication came after the exports, and therefore, the policy amendment should not affect the petitioner's rights.5. Considering the petitioner's case and the supporting case laws, the court allowed the writ petition, setting aside the impugned order and ensuring the validity of the DFIA License issued to the petitioner on 3-10-2016 for a period of six months. The court's decision was based on the petitioner's legitimate claim under the SION provisions, unaffected by subsequent policy changes.This detailed analysis outlines the key issues raised in the judgment and the court's reasoning behind the decision to grant the writ petition in favor of the petitioner.