2016 (4) TMI 1284

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....order of this Court of January 28, 2016. The petitioners say that a recent judgment of the Supreme Court reported at (2016) 2 SCC 226 = 2015 (326) E.L.T. 26 (S.C.) (Director General of Foreign Trade v. Kanak Exports) leaves no doubt as to the petitioners' entitlement. 2. Though the Union does not dispute that the issue is the same as in WP No. 1355 of 2015 (LGW Industries Limited v. Union of India) which was allowed by the order of January 28, 2016, the Union places a contrary judgment of January 7, 2016 passed by a Division Bench of the Delhi High Court which, according to the Union, could not be cited before this Court when the order of January 28, 2016 was passed. 3. Curiously, the Delhi High Court judgment now cited by t....

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.... communication, that a reduced amount has been allowed. 6. The petitioners say that such partial rejection is by virtue of the subsequent notification of September 25, 2013 by which a cap was put on the quantum of benefit. Clause 2 of the notification of September 25, 2013 is relevant :  "The following sub-paragraphs (i) & (ii) are added below paragraph 3.14.4(c) as under :  (i)      Benefit of Incremental Export Incentivisation Scheme for the last quarter of 2012-13 will be limited to 25% growth or incremental growth of Rs. 10 crores in value, whichever is less.  (ii)    Claims in excess of this value will be subjected to greater scrutiny by Regional ....

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....ak Exports to decline the reliefs sought by the petitioner before the Delhi High Court in identical circumstances as the present case. The extract from the Supreme Court judgment relied upon in that case is quoted :  "105. We may state, at the outset, that the incentive scheme in question, as promulgated by the Government, is in the nature of concession or incentive which is a privilege of the Central Government. It is for the Government to take the decision to grant such a privilege or not. It is also trite law that such exemptions, concessions or incentives can be withdrawn any time. All these are matters which are in the domain of policy decisions of the Government. When there is withdrawal of such incentive and it is also s....

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....in date and in respect of certain items of import. A subsequent notification that discontinued the scheme, according to the Supreme Court, amounted to retrospective operation being given to the subsequent notification which was held to be impermissible. 13. The Supreme Court referred to several previous judgments and the general principle that delegated legislation could not be made operative retrospectively unless the authority conferred by the statute in such regard was specific. Paragraph 113 of the report in Kanak Exports explains the legal position, including that the modification or the closure of such a scheme after an exporter had done the act that entitled the incentive under the original notification would amount to retros....