TaxTMI 
TaxTMI 
2020 (1) TMI 598
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....tters Patent Appeals have been preferred by the original respondents. WP(C) No. 6640/2015 and WP(C) No.1663/2012 were preferred by the respondents and the same were allowed by the learned Single Judge vide orders dated 14th January, 2019 and 27th January, 2015. 2. The respondents, in these two appeals, are E.I. Dupoint India Private Limited, and its Manager-Indirect Tax, Mr. Vineet Bose, respectively. 3. Respondent No. 1, on 5th February, 2009, was issued scrips/licenses, under the "Served From India Scheme" (hereinafter referred to as "SFIS"), which was one of the export promotion schemes, available under the Foreign Trade Policy, in terms whereof importers could, subject to fulfillment of the conditions stipulated, avail the benefit of exemption, either in whole or in part, from the payment of Customs duty, on the goods imported by them. 4. The SFIS scrips, issued to Respondent No.1, were in terms of the SFIS as contained in the 2004-2009 Foreign Trade Policy (hereinafter referred to as "FTP 2004-2009"). 5. At this juncture, certain relevant provisions, relating to the SFIS, as contained in the FTP 2004-2009, and in the FTP 2009-2014 (under which no benefits were soug....
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.... (ii) the import had a total free foreign exchange earning of at least Rs. 10 Lakhs in preceding financial year. It is important to note that paras 3.6.4.2 and 3.6.4.3 of the FTP 2004-2009, extended the benefit of the SFIS to all service providers. 7. As against this, para 3.12.2 of the FTP 2009-2014 extended the benefit of the SFIS only to Indian service providers, the other eligibility conditions remaining the same. 8. On 22nd April, 2009, a communication was addressed, to Respondent No. 1, rejecting its claim, for grant of SFIS benefits, (despite the fact that the scrips already stood issued to it) for the following reasons: "In this case it seems your firm is not an Indian brand or company and does not contribute in creation a powerful & unique served from India brand. Hence the objective of SFIS Scheme to accelerate growth in export of Services from India which creates a powerful and unique served from India brand is not achieved. Hence your case is not covered under any category of para 9.53 of FTP and also does not meet the basic objective for grant of SFIS benefit." 9. The above decision was, admittedly, taken pursuant to deliberations by the Policy I....
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....nts (I) Pvt. Ltd v. U.O.I.) and WP (C) 6800/2013 (Nokia Solutions and Networks India Pvt. Ltd. v. U.O.I.). 12. There was, however, one crucial distinguishing feature, in the case of Respondent No. 1, vis-à-vis, the cases of Yum Restaurants (I) Pvt. Ltd. and Nokia Solutions and Networks India Pvt. Ltd. 13. While M/s Yum Restaurants (I) Pvt. Ltd. (supra) and Nokia Solutions and Networks India Pvt. Ltd. (supra) dealt with entitlement to the benefits of SFIS, under the FTP 2009-2014, the case of Respondent No.1 was with respect to the FTP 2004-2009. 14. The learned Single Judge, vide judgment dated 27th January, 2015 (which forms subject matter of challenge in LPA 770/2015) allowed all the writ petitions, including WP (C) 1663/2012, holding that SFIS benefits were available to all the petitioners before him i.e. that the said benefits available under the FTP 2004-2009 as well as under the FTP 2009-2014. 15. We are not concerned, in these appeals, with the availability, or otherwise, of SFIS benefits under the FTP 2009-2014, as the case of Respondent No. 1 is limited to the FTP 2004-2009. In fact, the entitlement of Yum Restaurants (I) Pvt. Ltd. to SFIS benefits, unde....
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....ns on which Respondent No. 1 had been denied the benefits of the SFIS, Mr. Arun Bhardwaj would seek to contend that the learned Single Judge was in error in reversing the said decision. 23. Mr. Arun Bhardwaj also places reliance on para 2.3 of the FTP whereunder the interpretation, by the DGFT, of the provisions in the FTP, was final and binding. 24. We are unable to subscribe to the view canvassed by the appellant. 25. Para 3.6.4.2 of the FTP 2004-2009 is clear and unequivocal in its terms. All Service Providers, who provided service enlisted in Appendix 10 of the FTP, and who have a total free foreign exchange earning of at least Rs.10 Lakhs in the preceding financial year, qualified for the benefits of the SFIS. Significantly, the clause talks that all such service providers, shall qualify for the benefits of the SFIS Scheme. 26. Etymologically, the expression "shall" denotes a mandate, and the Supreme Court has, in various decisions, held so. Khub Chand v. State of Rajasthan, AIR 1967 SCC 1074; Janki Sugar Mills v. Commissioner of Meerut Divn, (1979) 1 SCC 524; Divisional Level Committee v. Sahu Stone Crushing Industries, (1998) 8 SCC 435; Biswanath Poddar v. Archan....
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....s no equity about a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." (Emphasis supplied) The above aphorism, as enunciated by Rowlatt, J., is generally regarded as locus classicus. 28. It cannot be forgotten that export promotions schemes are intended to benefit exporters, who, through the export, earn valuable foreign exchange. It is precisely for this reason that, minimum free foreign exchange has been stipulated as one of the pre-conditions for being entitled to the benefits of SFIS. It would do complete disservice to the intent to clause 3.6.4.2 of the SFIS, therefore, to restrict the benefit thereof, to entities which fulfill the two conditions stipulated therein, viz. of providing of a service/services listed in Appendix-10 of the FTP and of earning free foreign exchange of at least Rs. 10 lakhs in the preceding financial year, to the benefits of the said Scheme. 29. The decision of the said PIC is, therefore, on the fact of it, unsustainable in law. 30. The PIC, no doubt, was entitled to interpret the policy. Under the guise of such interpretation, however, the PIC had no authority, however, to reword the....