2016 (5) TMI 557

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....High Court of Gujarat in Special Civil Application No. 11755 of 2003. By the said judgment, the High Court has dismissed the writ petition which was filed by the appellant herein claiming the benefit under Notification No. 07/2002-2007 dated 05.06.2002. Obviously, with the dismissal of the writ petition, the benefit has been denied by the High Court. To recapitulate the factual matrix in brief, the Government of India had come out with Export and Import Policy 2002-2007 (hereinafter referred to as 'EXIM Policy') which was promulgated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as 'Act'). It is not in dispute that this Policy is statutory in nature. The Act also empo....

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....lied) It is clear from the above that by the aforesaid Notification, the EXIM Policy was amended. One of the amendments, as can be noticed, was that benefit of Duty Entitlement Pass Book (DEPB) in lieu of Drawback for supplies made to Special Economic Zone (SEZ) or unit in SEZ were also to be given which means that whenever supplies from Domestic Tariff Area (DTA) to SEZ units were to be made under the EXIM Policy, these were to be treated as exports and entitled to Drawback under the EXIM Policy. However, what was stipulated by the said Notification was that the concerned person making such 'exports' can avail the benefit of DEPB in lieu of Drawback. In order to allow the aforesaid benefit of DEPB in lieu of drawbacks, the Cu....

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....." (emphasis supplied) The appellant herein made certain supplies from DTA to SEZ units and, therefore, fulfilled the conditions laid down in Notification No. 17/2002-2007 dated 07.11.2002 to claim benefits thereunder as, as per the aforesaid notification, these were to be treated as exports. These supplies were admittedly made after 05.06.2002 but before 01.04.2003. The appellant claimed benefit of DEPB in lieu of drawback for those supplies by application dated 26.05.2003. The request was, however, turned down on the ground that Circular No. 25/2003 came into effect only from 01.04.2003 and, therefore, the exports made before the said date were not eligible for DEPB benefits. The submission of the appellant herein that it beca....

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....y 2002-2007 was amended. With the issuance of such a notification, amendment came into effect from the date of issuance of the notification, i.e., 05.06.2002 and this notification, inter alia, made the exporters who make supplies from DTA to SEZ eligible to claim benefit of DEPB in lieu of drawback for supplies made to SEZ or unit in SEZ. Insofar as the circular dated 01.04.2003 is concerned, it is only administrative in nature. It prescribed the procedure/requirements that were to be fulfilled for claiming the benefit of DEPB in lieu of drawback. By administrative circular, notification dated 05.06.2002 which was passed under Section 5 of the Act, could not be altered as that would amount to amendment of the notification and it was not wit....