TaxTMI 
TaxTMI 
2020 (6) TMI 40
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....is reproduced hereinunder: "1.4 The principal objectives of this Policy are: (i) To facilitate sustained growth in exports to attain a share of at least 1% of global merchandise trade. (ii) To stimulate sustained economic growth by providing access to essential raw materials, intermediates, components, consumables and capital goods required for augmenting production and providing services. (iii) To enhance the technological strength and efficiency of Indian agriculture, industry and services, thereby improving their competitive strength, while generating new employment opportunities, and to encourage the attainment of internationally accepted standards of quality. (iv) To provide consumers with good quality goods and services at internationally competitive prices while at the same time creating a level playing field for the domestic producers." 4. Paragraph 2.34 of the Policy allows 'Third-party exports'. Paragraph 9.55 defines the term 'Third-party exports' as under: "Third-party exports" means exports made by an exporter or manufacturer on behalf of another exporter(s). In such cases, shipping bills shall indicate the name ....
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....anufactured by them and exported through DTA units; (iii) Deemed exports (even when payments are received in Free Foreign Exchange) and payment from EEFC account (iv) Service exports; (v) Supplies made by one status holder to another status holder; (vi) Export performance made by one status holder on behalf of other status holder will not be eligible for entitlement under the scheme. Supplies made or export performance effected by a non-status holder (Merchant exporter/Manufacturer with any export performance in 2003-04) to a status holder if the applicant as well as the non status holder have less than 25 per cent incremental growth over their respective previous years direct export turnover; (vii) The exports made by an applicant within a group and the group to which it belongs has individually less than 25 per cent incremental growth of export. Note 2 - The incremental growth of exports by an exporter shall not, directly or Indirectly, be transferred to any other exporters. Note 3 - Government reserved the right in public interest, to specify the export products, which shall not be eligible for calculation of increme....
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.... for a period of 12 months from the date of issue. The status holder shall within one month of the last imports made under this certificate or within one month of expiry of the certificate whichever is earlier, submit a statement of imports/utilization made under the certificate as per Appendix 17E, to the jurisdictional Regional Licensing Authority who has issued the certificate with a copy to the jurisdictional excise authorities." It further provided that:- "2. In terms of Para 3.2.5 of Handbook of Procedures (Volume 1), the following items would not be taken into account for computation of entitlement and export performance under Duty Free Credit Entitlement Scheme for Status Holders: a. Rough, uncut and semi polished diamonds b. Gold, silver in any form including plain jewellery thereof c. Food grains sourced from central pool maintained by FCI. d. Items exported under free shipping bills 3. In terms of Para 3.2.5 of Handbook of Procedures (Volume 1) the following items would not be allowed for imports under Duty Free Credit Entitlement Certificate for Status Holders: a. Agricultural products which fall under Ch....
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....3.04.2004, the same being retrospective in nature, were applicable for all exports made from April 01, 2003 and such exclusion was therefore, valid. The High Court, however, held the exclusion of the following exports from the benefits of the duty-free import entitlement for the exports Status Holder to be neither clarificatory nor in public interest and therefore, bad in law; 1) items exported under Free Shipping Bills; and 2) Gold, silver in any form including plain jewellery thereof, in so far as the import of capital goods and office equipment for the factory of the associate/supporting manufacturer/job worker shall be working. 16. The petitioner herein also filed a writ petition before the High Court of Judicature at Bombay, being Writ petition no.2397/2004, challenging the Notifications dated 28.01.2004 and 21.4.2004 as amended by the Notification dated 23.04.2004 as also the Public Notice dated 28.01.2004. 17. The Bombay High Court by its judgment dated 04.07.2005 partly allowed this writ petition. It upheld the validity of the Notification dated 28.01.2004 holding it to be clarificatory in nature, and set aside the Public Notice dated 28.01.2004 as b....
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....rpen this question before we answer the same by formulating it in the following words: Whether, in the cases of these exporters, the exports shown by them can be treated as actual exports entitling them to avail the benefit of the Scheme? 110) This issue would be inter-twined with other related issue, namely, whether the notification has retroactive operation or it is retrospective in nature. Both these aspects are to be dealt with simultaneously in order to provide suitable and right answer to the question posed. The case of the exporters, as noticed above, is that since they had already fulfilled the requirement of 'incremental growth in exports' which they were require to fulfill between April 01, 2003 to March 31, 2004, a vested right accrued in their favour to get the special incentive in terms of the scheme which, of course, was to be availed from April 01, 2004. The case of the Government, on the other hand, is that the benefit was to accrue to these exporters only from April 01, 2004 and before that it was withdrawn and, thus, no vested right accrued in their favour. It was also argued that in the policy, which provides special incentives to status....
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....which 4657 1 Rough, and re-exported polished diamonds 2475 2 Supplies taken from status holders not meeting the minimum turnover and growth criteria 1316 Share of the above 2 categories in the total 81.4 % exports Export surge of 1135% for M/s. Adani Exports came in 2003-04 while for the past six years their exports were declining. Export Turnover (in crores It is pertinent to note that except the above mentioned persons no other exporter in the country has challenged the said Notifications or the Public Notices dated January 28, 2004 and April 21, 2004 respectively. It was also brought to the notice of the DGFT that some of the exporters have procured rough diamonds from local firms and exported the same by a 5% loss as they were confident of covering up the loss by receiving the 10% DFCE incentives offered by the Government. All these aspects are discussed in much details earlier and need not be repeated. We would like to recapitulate the following stark features/practices which have surfaced on record as a result of investigation: 113) Mr. Adhyaru has successfully d....
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.... other firms to inflate their turnover. Contracts have been signed between the petitioners and other exporters that petitioner will provide marketing and other services and act as third party exporter. According to reports status-holders were purchasing exports made by other parties at a premium with a view to show incremental growth of 25% or more in exports without having actually achieved such growth. 114) In such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioners/exporters had actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the notifications dated April 21 and 23, 2004, did not take away any vested right of these exporters and amendments were necessitated by overwhelming public interest/considerations to prevent the misuse of the Scheme. Therefore, we are of the opinion that even when impugned Notification issued under Section 5 could not be retrospective in nature, such retrospectivity have not....
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....hat the exports were made by Kanak "through fraudulent means" or that Kanak had engaged in "pernicious or blatant misuse of the provisions of the Scheme." Absent any pleading in Kanak's Writ Petition or Civil Appeals, it was not open for any Court much less this Hon'ble Court to record findings with respect to Kanak Exports that the exports were "paper exports" or "fraudulent". xxxxxx B. It is submitted that the findings rendered with respect to paper exports or exports by fraudulent means in so far as Kanak is concerned are not supported by any evidence adduced by the UOI/DGFT in Kanak's case. There is no document placed on affidavit showing that a single export effected by Kanak was not genuine. In so far as Kanak is concerned, this, is a case of: • No pleading • No evidence in relation to genuineness of exports, but nevertheless denial of relief granted by the Bombay High Court. xxxxxx H. The statutory scheme provides a comprehensive machinery for separating genuine cases for receiving duty free entitlement certificates from cases that are not genuine. An evaluation of every application seeking DFEC is re....
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.... learned senior counsel for the petitioner submits that the Impugned Order is liable to be set aside inasmuch as the Supreme Court, in its judgment dated 27.10.2015, was merely considering the validity of the Notifications dated 28.01.2004, 21.04.2004 and 23.04.2004. The Supreme Court was not called upon to consider whether the petitioner is otherwise entitled to the benefit under the DFCE Scheme. Findings of the Supreme Court were also confined only to the determination of the validity of the above Notifications and the Public Notice and whether they could operate retrospectively with effect from 01.04.2003. While the Notification dated 28.01.2004 was held to be clarificatory in nature and therefore, applicable with retrospective effect, the Public Notice dated 28.01.2004 was held to be ultra vires and the Notifications dated 21.04.2004 and 23.04.2004 were held to be prospective in nature. The observations of the Supreme Court that a vested right is not created in favour of the exporter who, without making actual exports, plays with the provisions of the Scheme and tries to take undue advantage thereof, were general in nature and not specific to the petitioner herein. For the resp....
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....f the Trade Notice dated 08.05.2017, the respondents were obligated to carry out such investigation to determine the eligibility of the petitioner for the benefit under the Scheme. 29. The learned senior counsel for the petitioner finally submits that in reply to an application under the Right to Information Act, 2005, it was revealed that in fact, such benefit of the Scheme has been given to M/s Adani Export Ltd. in spite of the observations made by the Supreme Court in the above referred judgment and no recovery proceedings have been initiated against it. He submits that this itself shows the understanding of the respondents of the Supreme Court judgment as not acting as a complete bar on the consideration of the application of the petitioner or M/s. Adani Export Ltd. for benefit under the Scheme. He submits that to deny the petitioner of the benefit of the scheme would therefore, be discriminatory. 30. The learned counsel for the respondents, on the other hand, submits that the petitioner is, in fact, seeking to reagitate the relief denied to it by the Supreme Court. He submits that the petitioner cannot be allowed to seek the relief which had been denied by the Supreme Co....