2019 (4) TMI 450

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.... 15% fixed w.e.f. 1st April, 2000 under the Duty Exemption Pass Book ("DEPB" for short). 2. This petition was admitted on 11th June, 2001. The question which arises in this petition is : "Whether the petitioners are entitled to credit of duty on its exported product under the DEPB scheme at 15% with retrospective effect from 1st April, 1997, though the same was issued only on 1st April, 2000 ?" 3. Briefly, the facts leading to this petition are that the petitioner is engaged in manufacture of drugs, pharmaceutical and fine chemicals. It inter alia manufactures and exports Oxyclozanide B.P. (Vet) ("final product" for short) using Trichloro Salicylic Acid (TCSA). On 1st April, 1997, the Exim Policy 1997 to 2002 was notified under Section 5 the Act. In terms of Chapter 7 of the said Policy, the provisions relating to duty exemption / remission scheme including the DEPB Scheme was set out. At that time, the handbook of procedures was also issued by public Notice under paragraph 4.11 of the Exim Policy 1997-2002. It set out standard Input-Output norms which are used for issuing of Quality Based Advance License. The petitioner's final product finds mention at Sr. No.302, 303 and ....

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....ntation dated 11th August, 1999, the Director General of Foreign Trade by Public Notice dated 31st March, 2000, enhanced the rate of credit under the DEPB scheme in respect of the petitioners' final product to 15% of the FOB value of exported final products. 7. On issue of the above Public Notice dated 31st March, 2000, the petitioners by representation dated 13th December, 2000 to the Additional Director General of Foreign Trade sought fixation of credit at the rate of 15% of the FOB value of exported goods under the DEPB scheme effective from 31st March, 2000 be given with retrospective effect from 1st April, 1997. In support instances of Public Notices being issued with retrospective effect in case of some marine products were cited. However, the above representation was rejected by the impugned order dated 27th February, 2001. 8. Thus, leading to the filing of this petition. It seeks to set aside the order dated 27th February, 2001 and prays for a direction to the respondents that the public notice, bearing No.1(Re-2000) dated 31st March, 2000 providing for credit at 15% of the FOB value of final product exported be applied retrospectively w.e.f. 1st April, 1997. 9. Mr. ....

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....rter may export product for which credit rate is not notified provided that such export products are covered under Standard Input Output Norms which are listed in the Handbook of Procedures (Vol.2), 1997-2002. In case the credit for such products are notified, the exporter shall be entitled for DEPB provided an application for issuance of DEPB is made within a period of 90 days from the date of exports or 60 days from the date of notification of credit rate, whichever is later. However, in such cases exports made, shall be entirely on the risk and responsibility of the exporter." 12. We have considered the rival submissions. The undisputed facts in the present case is that the petitioners' final product was mentioned in the standard Input-Output norms. However, on introduction of the Exim Policy 1997 to 2002, no public notice was issued prescribing the rate of credit available under the DEPB scheme in respect of the final products exported by the petitioners. In terms of the Exim Policy as provided in paragraph 7.14 thereof, under the DEPB scheme an exporter may apply for credit as a specified percentage of FOB value of exports. The rates at which the credit may be available ....

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....ra 7.50 (as substituted) of the Handbook for the period commencing from 1st April, 2000 reads as under : "7.50 Exports in Anticipation of credit rate. No exports shall be allowed under the DEBP scheme unless the DEPB rate of the concerned export product is notified." Thus, no fault can be found with the view taken by the impugned order dated 27th February, 2001. 15. The reliance upon the retrospective benefit of credit rate under the DEPB scheme in case of Marine Products is without placing on record the Public Notice by which the same was given. In any case, from the Trade Notice dated 26th February, 1999 annexed at Exhibit' P' to the petition, it appears to be a case where the description of the product in the Input-Output norms was itself changed / amended. This would lead to a change in the rate of credit of duty and the erstwhile para 7.50 of the Policy introduced w.e.f. 21st May, 1997 was in the Handbook at that time. However, the same does not find a place at the time when the Public Notice was issued on 31st March, 2000 (commencing from 1st April, 2000) as it stood substituted by the new provision. 16. In the above view, we see no reason to interfere with the imp....