Telecom sector SEIS exclusion cannot be expanded by instruction; writ jurisdiction remains available when rejection rests on that instruction.

The Foreign Trade Policy 2015-20 was read to exclude only telecom service providers from SEIS in Paragraph 3.09(2)(i), not persons merely rendering notified services to telecom entities, because a subordinate instruction cannot enlarge the policy's ineligibility clause beyond the Central Government's mandate under Sections 5 and 6 of the Foreign Trade Act. The writ petition was maintainable despite statutory appeal and review, as the rejection letters depended entirely on the impugned instruction and did not involve an independent merits assessment. The instructions and consequential rejection orders were set aside, and reconsideration of the SEIS claims was directed.

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Issues: (i) Whether the expression "Service Providers in Telecom Sector" in Paragraph 3.09(2)(i) of the Foreign Trade Policy 2015-20 excludes only telecom service providers or also service providers rendering services to telecom entities, and whether the impugned instructions could enlarge that exclusion; (ii) whether the writ petition was maintainable notwithstanding the availability of statutory appeal and review, where the rejection orders were founded on the impugned instructions.

Issue (i): Whether the expression "Service Providers in Telecom Sector" in Paragraph 3.09(2)(i) of the Foreign Trade Policy 2015-20 excludes only telecom service providers or also service providers rendering services to telecom entities, and whether the impugned instructions could enlarge that exclusion.

Analysis: Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 vests the power to formulate and amend the Foreign Trade Policy in the Central Government, while Section 6 confers on the Director General of Foreign Trade only the function of advising and carrying out the policy. The policy itself grants SEIS to notified service providers and excludes only specified ineligible categories. On a comparative reading of the earlier policy framework and the structure of Paragraphs 3.07, 3.08 and 3.09, the exclusion of "Service Providers in Telecom Sector" was understood as referring to providers of telecom services, not to persons supplying other notified services to telecom companies. An instruction that treated all services rendered in the telecom sector as ineligible introduced a new restriction and therefore went beyond clarification.

Conclusion: The impugned instructions were ultra vires the policy, and the exclusion in Paragraph 3.09(2)(i) does not extend to service providers who merely render notified services to telecom service providers.

Issue (ii): Whether the writ petition was maintainable notwithstanding the availability of statutory appeal and review, where the rejection orders were founded on the impugned instructions.

Analysis: The rejection letters rested entirely on the impugned instructions and did not reflect an independent adjudication on the merits of the claimed services. In such a situation, relegating the petitioners to appeal or review would not afford an effective remedy, because the foundational instruction would continue to control the decision-making process. The availability of an alternate remedy did not, on these facts, bar writ jurisdiction.

Conclusion: The writ petition was maintainable and the petitioners could not be confined to the statutory appeal or review.

Final Conclusion: The impugned instructions and the consequential rejection orders were set aside, and the respondents were directed to reconsider the SEIS claims afresh in accordance with the Foreign Trade Policy 2015-20 after giving an opportunity of hearing.

Ratio Decidendi: A subordinate authority empowered only to clarify or implement a foreign trade policy cannot, by circular or instruction, enlarge an ineligibility clause so as to add a new class of disqualified claimants, and writ jurisdiction is available where a rejection order is wholly founded on such an ultra vires instruction.

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