2023 (12) TMI 1158 - HC - Customs

Applicability of Policy Circular to EPCG authorisations issued before 5 December 2017: retrospective amendment invalidated for prior authorisations

Whether a policy circular could be applied to EPCG authorisations issued prior to 05.12.2017 was contested; the reasoning was that the DGFTs power under ... Interpretation of statute (policy circular) - whether the Policy Circular Notice No. 22/2015-20 dated 29.03.2019 issued by the respondent No. 3 is applicable to the EPCG Authorisation issued prior to 5.12.2017 or not? HELD THAT:- In terms of paragraph no. 1.03 of the FTP, power of DGFT is restricted only to lay down the procedure which is to be followed by the exporter or the importer. DGFT while exercising such powers, notifies the procedure to be followed by the exporter or the importer but there is no power to amend/update the FTP. By the impugned policy circular, respondent No. 2 has in effect amended the FTP with retrospective effect to the EPCG Authorisation issued prior to 5.12.2017 under the guise of mere procedural changes for third-party exports. By amendment in paragraph no. 5.10(c), respondent No. 2 has taken away the benefit which was available to the petitioners under FTP 2009-14 and original FTP 2015-20 prior to 5.12.2017 inasmuch as prior to revision even in case of third party exports, full realised value of shipping bill was to be taken into consideration for the fulfillment of export obligation which was restricted to actual payment from third party exporter after 5.12.2017. In facts of the case, under the guise of amendment in HBP with policy circular dated 29.03.2019, respondents nos.2 and 3 have tried to make changes in FTP so far as the application of such amendment in para 5.10 (c) of the HPB to the EPCG Authorisation issued prior to 05.12.2017- the date of amendment which is the exclusive domain of the Central Government. The amendment in para 5.10(c) from 05.12.2017 can be made applicable to the EPCG Authorisation issued from the said date only and the date of issuance EPCG Authorisation under FTP cannot be ignored under guise of policy decision by applying the same to all third-party exports made after 05.12.2017. The respondents have jurisdiction to amend the HBP for availing the benefit under the EPCG Scheme in view of the revised FTP 2015-20 (mid term review) but such amendment cannot affect the conditions stipulated in the EPCG Authoristion already issued for the benefit under the EPCG Scheme framed under the provisions of FTDR Act and FTP 201520. Revised FTP 2015-20 would be applicable only from 05.12.2017 and hence any amendment made in 5.10 (c) of the revised HBP 2015-20 can apply to the EPCG Authorisation issued under the revised FTP 2015-20 only - The respondents were therefore not justified in the issuance of the circular dated 29.03.2019 to apply the amendment in para 5.10(c ) of the revised HBP to all exports made after 05.12.2017 ignoring the date of issuance of the EPCG Authorisation prior to 05.12.2017. The impugned policy circular dated 29.03.2019 is therefore, beyond the jurisdiction of respondent no. 3 as respondents nos.2 and 3 have no power to deny the benefit under the EPCG Scheme under the original FTP 2015-20 in respect of the EPCG Authorisation issued prior to 5.12.2017 and such benefit of availing full value of shipping bill under the EPCG Authorisation issued prior to 5.12.2017 could not have been curtailed by respondent nos.2 and 3 by applying revised HBP 2015-20 either under the FTDR Act or FTP - amendment made in paragraph no. 5.10(c) of the revised HBP2015-20 read with policy circular dated 29.03.2019 is invalid so far as the same is made applicable to the Authorisation under the EPCG scheme issued prior to 5.12.2017. Petition allowed in part. Issues Involved:1. Validity of Policy Circular Notice No. 22/2015-20 dated 29.03.2019.2. Retrospective application of amendments to EPCG Authorizations issued prior to 05.12.2017.3. Jurisdiction of DGFT in amending FTP through Handbook of Procedures (HBP).Issue 1: Validity of Policy Circular Notice No. 22/2015-20 dated 29.03.2019The court examined whether the Policy Circular Notice No. 22/2015-20 dated 29.03.2019, which clarifies that all shipments made from 05.12.2017 would be counted towards export obligation only for actual payments realized through normal banking channels, was valid. The circular did not differentiate between EPCG Authorizations issued before and after 05.12.2017, thereby applying the revised Handbook of Procedures (HBP) 2015-20 to all authorizations.Issue 2: Retrospective Application of AmendmentsThe court noted that prior to the amendment on 05.12.2017, the full realized value of the Shipping Bill was considered for fulfilling export obligations. Post-amendment, only actual payments received through normal banking channels were considered. The petitioners argued that this amendment should not apply retrospectively to EPCG Authorizations issued before 05.12.2017. The court agreed, citing that amendments should be prospective unless explicitly stated otherwise by the statute.Issue 3: Jurisdiction of DGFT in Amending FTPThe court held that the power to amend the Foreign Trade Policy (FTP) lies exclusively with the Central Government under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. The Director General of Foreign Trade (DGFT) has the authority to lay down procedures but cannot amend the FTP itself. The impugned policy circular effectively amended the FTP by changing the conditions for fulfilling export obligations, which is beyond the DGFT's jurisdiction.Judgment:The court concluded that the Policy Circular Notice No. 22/2015-20 dated 29.03.2019 is invalid to the extent that it applies the amended Paragraph 5.10(c) of the revised HBP 2015-20 to EPCG Authorizations issued prior to 05.12.2017. The amendment should only apply to authorizations issued after 05.12.2017. The petition was partly allowed, and the rule was made absolute to this extent. No order as to costs.