TaxTMI 
TaxTMI 
2015 (10) TMI 2331
X X X X Extracts X X X X
X X X X Extracts X X X X
....2009-14') in respect of foreign exchange earnings in the Financial Year 2011-12. In addition thereto, the Petitioner has also challenged the minutes of the meeting dated 27th December, 2011 of the Policy Interpretation Committee (for short, 'PIC') chaired by Respondent No.2 (DGFT). 3. It is the case of the Petitioner that the Respondents, by issuing the impugned SCN, are denying the benefits implicitly secured by the Petitioner under the said FTP 2009-14 and seek to amend the eligibility criteria under the SFIS. The impugned SCN and the PIC minutes illegally withdraw the benefits granted under the FTP 2009-14 to genuine exporters of services from India such as the Petitioner by introducing conditions which are not contemplated anywhere in the said FTP. It is in these circumstances, that the Petitioner submitted that the impugned actions of the Respondents are ex-facie and patently without jurisdiction, without the authority of law and violative of the fundamental and constitutional rights of the Petitioner guaranteed under the Constitution of India. 4. The brief facts are that the Petitioner is an Indian service provider under a brand name 'Four Seasons' engag....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be set aside by us, in our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. 8. With the help of the learned counsel, we have gone through the papers and proceedings including the impugned SCN as well as the PIC minutes dated 27th December, 2011. Firstly, it is undisputed that the brand 'Four Seasons' is not an Indian brand. On these facts and considering the arguments canvassed on behalf of the Petitioner and the issues raised in this Writ Petition, we find that the same are squarely covered by a Division Bench decision of this Court to which one of us (S. C. Dharmadhikari, J.) was a party, in the case of Shri Naman Hotels Private Ltd v/s The Union of India and Others. Writ Petition No.33 of 2015 and other connected Writ Petitions decided on 17th August, 2015 . On perusing the aforesaid decision as well as the contentions raised in the present Writ Petition, we find that the same arguments that have been canvassed before us, were also put forth by the parties in the case of Naman Hotels Private Ltd.1 After considering these arguments, by an elaborate and reasoned order, the aforesaid contentions were negated. In th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... eligible service providers who fulfill the eligibility criteria. The Petitioner cannot claim a vested right in matters of duty credit or exemption from payment of a duty or tax. None can say that the mandate of Article 19 (1) (g) of the Constitution of India is violated merely because at certain time and on certain occasions, the concessions and benefits were given or there is exemption from payment of duty and taxes imposed by laws of Parliament. The traders or citizens to whom the benefits and facilities are granted on fulfillment or requirement of a distinct eligibility criteria stand apart from others. Those not granted the same cannot claim any parity. Hence, in the absence of a vested right and only on the strength of a particular treatment of such cases in the past, no plea of violation of constitutional mandate enshrined in Articles 14 and 19 (1) (g) can be accepted. and Therefore, the word 'Entitlement' as is found in paragraph 3.12.4 is important. That Service providers of services listed in Appendix 41 of HBP Volume 1 would alone be eligible and such eligible service providers will be entitled to Duty Credit Scrip equivalent to 10% of free foreign exchange earne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the DGFT officials, we are not here concerned with the interpretation of this definition at all. We proceed on the assumption that individuals and Corporate entities (international and national) fell within such a definition and are entitled to the benefits. We are also not as much concerned with the nature of services, paragraph 9.52 which defines the term 'services' include all tradable services covered under General Agreement on Trade in Services (GATS) and earning free foreign exchange. Further paragraph 9.53 defines the term 'Service Provider'. That means a person providing: "(i) Supply of a 'service' from India to any other country; (ii) Supply of a 'service' from India to service consumer of any other country in India ; (iii) Supply of a 'service' from India through commercial or physical presence in territory of any other country; (iv) Supply of a 'service' in India relating to exports paid in free foreign exchange or in Indian Rupees which are otherwise considered as having being paid for in free foreign exchange by RBI. 37. A bare reading of the same would indicate that persons providing a service from Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e taken into account for calculation of entitlement: (a) Foreign Exchange remittances: 1. related to Financial Services Sector 1. Raising of all types of foreign currency loans; 2. Export proceeds realization of clients; 3. Issuance of Foreign Equity through ADRs/GDRs or other similar instruments; 4. Issuance of foreign currency Bonds; 5. Sale of securities and other financial instruments; 6. Other receivables not connected with services rendered by financial institutions; and 1) if earned through contract/regular employment abroad (e.g.labour remittances) (b) Payments for services received from EEFC Account; (c) Foreign exchange turnover by Health care Institutions like equity participation donations etc (However, remittances received on account of medical treatment, surgery, testing, consultancy and health care provided by the institution shall be eligible;) (d) Foreign exchange turnover by Educational Institutions like equity participation, donations, etc (However remittances received on account of the course fees and consultancy provided by the institution shall be eligible); (e) Export turn over relating to services of units operating under SEZ....