2004 (11) TMI 583

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....ts unit at Kandla Special Economic Zone (for short "SEZ"), has filed this petition under Article 226 of the Constitution and prayed that the impugned orders dated 1.7.2003 (Annexure : A) and 9/10.6.2003 (Annexure : B) passed by the respondent No.2 be quashed and set aside. The petitioner has also prayed for issuance of writ of mandamus or direction, issuing direction to the respondent to grant Duty Entitlement Pass-Book (for short "DEPB Entitlement") as per its Application for the period from 5.6.2002 to 31.3.2002 as per Export and Import Policy 2002-2007, vide Notification dated 5.6.2002. 3. The Government of India, Ministry of Commerce & Industries, issued Notification No.1/2002-07 dated 31.3.2002 in exercise of power....

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.... for supplies from the DTA. We are concerned with Clause : 7.9 (a) in this petition. Therefore, the same is reproduced hereunder : (a) Supplies from the DTA to SEZ units shall be eligible for the following : (I) DTA supplier shall be entitled fro :- (i) Relevant entitlements under Paragraph 8.3 of the Policy (ii) Discharge of Export performance, if any, on the supplier. Government of India, Ministry of Commerce and Industry, issued notification No.7/2002-07 dated 5.6.2002 in exercise of powers conferred u/s.5 of the Foreign Trade (Development and Regulation) Act, 1992 (No.22 of 1992) read with Paragraph : 1.1 of the Export and Import Policy, 2002-07, adding sub-clause (iii) to Paragraph 7.9 (I) of Chapter VII of the Polic....

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....ment to the Office of the Development Commissioner, Kandla Special Economic Zone vide their Application dated 26.5.2003. Non-granting of DEPB resulted in very high procurement cost for basis raw material and as a consequence thereof their export competitiveness was affected. It was also stated in it that despite clear provisions of the EXIM policy the said benefit is not provided to them, therefore, necessary instruction be issued to the competent Authority to consider their case sympathetically and extend the benefit of DEPB to the supplies from DTA which was procured by them during financial year. 5. The Development Commissioner, Kandla, SEZ, by its letter dated 1.7.2003 informed the petitioner that though the provisions in the Exim Poli....

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....d 5.6.2002 and by not denying the benefit under it the petitioner has made to suffer tremendous loss. He, therefore, submitted that the impugned orders/letters dated 1.7.2003 and 9/10.6.2003 (Annexure : A & B respectively) passed by the Development Commissioner and Joint Development Commissioner respectively be quashed and set aside. In support of his submission Shri Thakore has placed reliance on the Judgment of the Hon'ble Supreme Court in the case of M/S. MOTILAL PADAMPAT SUGAR MILLS CO.LTD. v/s. THE STATE OF UTTAR PRADESH & ORS., reported in AIR 1979 SC 621 and the Judgment of the Karnataka High Court in the case of UNION OF INDIA v/s. YOKOGAWA BLUESTAR LTD.m, reported in 2001 (129) E.L.T. 598 (Kar.). 7. We have already narrated th....