TaxTMI 
TaxTMI 
2020 (6) TMI 140
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....; (b) that this Hon'ble Court be pleased to issue a Writ of mandamus, or a Writ in the nature of mandamus, or any other appropriate Writ, Order or directions directing the Respondents to consider and process the Advance Authorisation Application No.05/27/040/00082/AM20 dated 24.06.2019 and dated 01.11.2011 with respect to Application No.05/27/040/00172/AM20 dated 18.09.2019; (c) For such further and other reliefs, including costs of this Petition, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case." 2. The Petitioner is an incorporated Company engaged in diverse businesses including the manufacture and export of Gold Jewellery and Gold Medallions, for which, the Petitioner regularly imports Gold bars. 3. The Petitioner vide its application dated 24th June, 2019 had sought for Advance Authorization under Para 4.37 of the Foreign Trade Policy (2015-2020) (hereinafter referred to as, "FTP") seeking for import of Gold Bars worth over Rs. 944 crores and export of Gold Medallions & Coins worth over Rs. 958 crores. 4. The Directorate General of Foreign Trade (hereinafter the "DGFT") issued a deficiency letter pertaining to the afores....
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...., could not be granted in light of the Impugned Public Notice dated 26th September, 201 12. It has been contended by the Ld. Counsel for the Petitioner that the DGFT vide its circular dated 26th September, 2019 by having excluded items of "Gold Medallions and Coins" or "Any Jewellery manufactured by fully mechanized process" has amended the provisions of the FTP which expressly provides for the Advance Authorization incases of these export items as per Para 4.32 of the FTP. 13. It has been averred that, since, DGFT has no powers to amend the FTP, in view of the specific exclusion of delegation of powers under Section 5 by the Central Government to DGFT, in Section 6 of the The Foreign Trade (Development & Regulation) Act, 1992, (hereinafter the "FTDR Act"), the circular is ultra vires and is liable to be quashed accordingly. 14. The Petitioner has placed reliance on, Deepak Enterprises vs. UOI 2018 (360) ELT 905 (Del.) & DGFT vs. Kanak Exports 2015 (326) ELT 26 (SC), to argue that the exclusion of the items from the benefit of Advance Authorization amounts to amendment of the FTP and thus, DGFT had no jurisdiction to exclude the same behest a Public Notice. 15. The said exclusi....
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....itioner to claim Advance Authorization. 19. The Foreign Trade (Development & Regulation) Act, 1992, under Section 5 empowers the Central Government to formulate, announce and amend the Foreign Trade Policy by way of notification in the Official Gazette. Moreover, Section 6 of the Act provides for the appointment of the Director General & his functions and it reads as under:- "6. Appointment of Director General and his functions.- (1) The Central Government may appoint any person to be the Director General of Foreign Trade for the purposes of this Act. (2) The Director General shall advise the Central Government in the formulation of the foreign trade policy and shall be responsible for carrying out that policy. (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3,5,15,16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order." (emphasis supplied) 20. Vide its powers under Section 5 of the FTDR Act, 1992, the Central Gov....
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....nd Appendices & Aayat Niryat Forms (AANF) Director General of Foreign Trade (DGFT) may, by means of a Public Notice, notify Hand Book of Procedures, including Appendices and Aayat Niryat Forms or amendment thereto, if any, laying down the procedure to be followed by an exporter or importer or by any Licensing/Regional Authority or by any other authority for purposes of implementing provisions of FT (D&R) Act, the Rules and the Orders made there under and provisions of FTP." 25. Having heard the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that by impugned public notice No.35/2015-2020 dated 26th September, 2019 (Annexure P-1 to the memo of writ petition) issued by respondent No.1 whereby the Director General of Foreign Trade ('DGFT'), in exercise of the powers under paragraph 1.03 of the Foreign Trade Policy 2015-2020, disallowed issuance of Advance Authorisations where item of export is "Gold Medallions and Coins" or any jewellery/articles manufactured by fully mechanized process, has in effect amended the Foreign Trade Policy, in excess of power and jurisdiction of the DGFT. 26. In Director General of Foreign Trade vs. Kan....
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....be exercised for procedural purposes and both the High Courts have rightly remarked that Para 3.2.6 inserted by the public notice goes beyond the procedural conditions. xxx xxx xxx 100. Therefore, we hold that the Public Notice dated 28-1-2004 issued by DGFT, so far as it excludes the aforesaid four items, is ultra vires." 27. In view of the aforesaid decision, the powers exercised by DGFT while issuing the aforesaid public notice dated 26th September, 2019 which puts restrictions upon issuance of the advance authorisation for the Gold Medallions and Coins is beyond the power, jurisdiction and authority of DGFT. 28. It has been held by the Supreme Court in Atul Commodities Pvt. Ltd. vs. Commissioner of Customs, Cochin 2009 (235) ELT 385 (SC), in paragraphs 49 and 50 as under:- "49. One more aspect needs to be mentioned. Para 2.33 expressly states that import of old and used computers/second-hand computers are restricted. Para 2.33 of the Handbook does not restrict photocopying machines. Import of photocopying machines is expressly restricted only by Notification No. 31 dated 19-10-2005. This itself indicates that categorisation/recategorisation cannot be done by policy circu....
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....icate that the imported goods should constitute 'inputs' in the goods exported relying upon Atul Commodities (supra). We also agree with the interpretation of the expression 'broad nexus' undertaken by the learned Single Judge. In fact, Bombay High Court in the case of Narendra Udeshi (supra) and Essel Mining & Industries Ltd. v. Union of India [2011 (270) E.L.T. 308 (Bom.)] has taken identical view dealing with the identical issue. For our benefit, we may reproduce the following para from the said judgment: "10. The Foreign Trade Policy, it is well settled, is referable to the provisions of Sections 4 and 5 of the Foreign Trade Development and Regulation Act, 1992. The policy cannot be amended by an administrative circular. The circular does not in this case supplement the policy or fill up an interstitial space. The circular imposes a substantive condition at variance with the policy. VBC 13 wp4499.07-14.6 Where the Central Government has considered it necessary to impose a requirement of physical incorporation, such a condition has been made expressly in other provisions of the Foreign Trade Policy. For instance, in relation to advance plus licences governed by the duty exempt....