TaxTMI 
TaxTMI 
2018 (3) TMI 290
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....respondent No.3 for failure to perform a statutory obligation which would include cancellation of its status as a Nominated Agency. 2. We do not think that the latter part of the prayer/broad relief sought by the petitioner should be considered for the alleged lapse on the part of respondent No.3. We leave it to the wisdom of respondent No.1 to take appropriate decision as far as this aspect is concerned. 3. However, we must at once clarify that what the petitioner is seeking is a benefit in terms of the policies which the competent authorities framed under the Foreign Trade (Development and Regulation) Act, 1992 ("FTDR Act" for short). Though the third respondent is a limited company, it is nominated in terms of the FTP and it performs statutory functions, as is claimed in the writ petition. 4. The FTP is also traceable to Section 5 of the FTDR Act. The Chapter 4 of the FTP, inter alia, provides for "Schemes for Exporters of Gems and Jewellery". 5. The petitioner places reliance upon para 4.32 r/w para 4.33 of the FTP and claims that the exporter of, inter alia, gold jewellery will be eligible to gold as an input from the Nominated Agency in advance or as replenishment....
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....nd, at the cost of repetition, clarify as under: (i) We have repeatedly been advising you to take delivery of gold following the procedure as laid down in FTP/HBP. However, you have not come forward to comply with the same which is the only reason why the release of gold remains "pending". (ii) The release of gold can be done only in accordance with the DGFT Notification 40 dt 23.02.2017 (and other relevant paragraphs of FTP). Both the Nominated Agencies as well as the exporters are bound by the same. (iii) The said Notification states that in case cenvat credit or input rebate has been availed, the exporter will be allowed duty free gold provided the exporter uses the duty free inputs to make dutiable goods. (iv) The exporter, therefore, should first declare whether he has availed cenvat credit / input rebate or not, so that his request for duty free gold can be processed. All our other customers have done so (on stamp paper). You have yourself declared that you have not availed cenvat credit. Therefore, we are unable to understand why you hesitate to declare whether you have availed input rebate or not as provided in the Notification. ....
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.... misinterpreting and misreading the policy is foisting on the petitioner the terms and conditions contrary thereto. This is particularly clear from the stand of the third respondent as reflected in the letter of 10­4­2017. 16. Upon such a petition, after it being served, the reply of respondent Nos.1 and 2 is that such a Notification was indeed issued. However, the Nominated Agency has not acted contrary to it. The petitioner should have fairly stated that whether Cenvat credit on precious metal (gold, silver and platinum) as input has been availed of and gems and jewellery products are exported availing rebate, then, the replenishment of such precious metal shall be allowed provided that such inputs procured duty free are used in the manufacture of dutiable goods in the factory/unit where the exported gems and jewellery products were manufactured. The sales/transfer of such duty free precious metal shall not be allowed. 17. Thus, the proof of export is not the only requirement but in addition the aforementioned condition should be fulfilled. That is why the first and the second respondents support the stand of the Nominated Agency. 18. Then it is stated in this af....
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....have been set out and it is submitted that the replenishment gold was not released for reasons which are entirely relevant and germane and it is the petitioner who refused to comply with the Notification. 24. With these prefatory paragraphs, the petition is dealt with parawise and each of the paragraphs are dealt with and the contents or such of those which are contrary or inconsistent with the FTP, the scheme and the salient features of which are set out in the foregoing paragraphs of the affidavit, so also the role of the Nominated Agency, are denied. Not resting its case only with this affidavit of 12­2­2018, an additional affidavit has been filed on 17­2­2018 in which it is stated that the third respondent and the petitioner have entered into an agreement dated 1­7­2016. Any dispute arising between the petitioner and the third respondent and vice versa is governed by this agreement. That provides for a dispute resolution clause. In such circumstances, even the grievance redressal mechanism being set out therein, the petition should not be entertained. 25. It is then stated that the transaction of obtaining gold by the petitioner for the past period....
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....nd respondent or any third parties. 30. On this stand of the petitioner being made known to the third respondent, Mr. Thacker says that in the garb of indemnifying the third respondent against all claims, the petitioner is avoiding its responsibility and obligation to fulfil the terms and conditions of the FTP and the Replenishment Scheme itself. This should not be permitted and no Indemnity Bond can be accepted in lieu of the specific term, namely, furnishing of security in the form of a Fixed Deposit or Bank Guarantee. 31. Alternatively, he would submit that if the course as suggested by the petitioner is permitted, that would become a precedent for all future cases. 32. After having heard both sides on this limited point, we do not see how the third respondent and which apprehends any action being taken against it by the competent authorities and particularly respondent Nos.1 and 2 can, in the facts and circumstances peculiar to this case, insist on the furnishment of a Bank Guarantee only. We have noted that Fixed Deposit or Bank Guarantee is a condition which has been insisted upon initially from the letter dated 27­1­2017, addressed by the third respondent. I....