TaxTMI 
TaxTMI 
2022 (12) TMI 277
X X X X Extracts X X X X
X X X X Extracts X X X X
....1120/2021 & 7144/2022. Mr. Balbir Singh, ASG and Mr. Asheesh Jain, CGSC with Mr.Gaurav Kumar & Mr. Sahib Singh, Advocates for Respondents in W.P.(C) 7144/2022. JUDGMENT 1. Since common questions of law are involved in the instant Writ Petitions, with the consent of the parties, the same are being disposed of by a Common Order. The facts of W.P.(C) 9084/2020 are being narrated for the sake of brevity, to understand the gamut of the questions that arise for consideration. However, before delving into the facts based on which the instant question of law has arisen, this Court would deem it fit to give an outline of the provisions of the relevant statute and policy made under it, the vires of which is under challenge. 2. The Foreign Trade (Development & Regulation) Act, 1992 ("FTDR Act") was enacted with the aim and objective of providing a framework for development and regulation of foreign trade by facilitating imports into, and augmenting exports from India. Section 3 of the FTDR Act gives power to the Central Government to make provisions by publication in the official gazette to implement the aforesaid objectives of the Act. Further, Section 5 of the FTDR Act empowers the Cent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ires of which in relation to the Parent Act, i.e., the FTDR Act, is under challenge on the ground that it is repugnant to the Parent Act. 9. Coming to the facts of this case, W.P.(C) 9084/2020 has been filed under Article 226 of the Constitution of India for issuance of appropriate writ, order or direction to quash and set aside the impugned para 3.08(f) of FTP 2015-20 along with impugned deficiency memos dated 03.06.2020 and 21.07.2020 issued by Respondent No.3. Further, the Petitioner has prayed for this Court to direct processing of the SEIS application dated 22.03.2020 filed by the Petitioner. 10. The Petitioner herein is a company incorporated under the provisions of the Companies Act, 1956 engaged, inter alia, in exports related 'Accountancy and Book-Keeping Services' to various customers outside India. In the financial year 2017-18, the Petitioner exported services and earned an NFE of USD 2,957,322.83 $ thereby, according to the Petitioner, entitling it to benefit of Duty Credit Scrips to the tune of Rs.71,58,109.21 under the SEIS Scheme. Since the Petitioner intended to take benefit under the SEIS scheme under FTP 2015-20, it applied for Importer Exporter Code (IEC) as r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erely on account of not having Importer Exporter Code (IEC) violates the Petitioner's right under Articles 14, 19(1)(g) and 300A of the Constitution of India. 15. The Petitioner submitted that the Respondents have failed to appreciate that the impugned rejection is contrary to the purpose of SEIS. It is submitted that the SIES was introduced under FTP 2015-20 with the objective of encouraging export of services notified vide Public Notice No.3/2015-20 dated 01.04.2015 and to provide benefit to such service exporters who are generating revenue in foreign currency by exporting notified services. 16. The Petitioner further submitted that the FTDR Act requires a service provider to obtain IEC only when service provider is taking benefit under the FTP. In this regard, impugned para 3.08(f) of the FTP 2015-20 and impugned deficiency memos are beyond the mandate of Section 7 of the FTDR Act, and therefore, the same are liable to be quashed. Further, that the Respondents grossly erred in imposing conditions of having IEC at the time of rendering service and that the said demand travels way beyond the scope of Section 7 of FTDR Act. It was submitted that the legislature within its wisdom ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n CC & CE vs. Port ware International, 2012 (284) ELT 50, CC & CE vs. Vignette Software India, 2012 (280) ELT 151, Laser Sight (India) Pvt Ltd. vs. CCE, 1999 (110) ELT 935 and CC vs. Shipping & Trading Associates, 2001 (128) ELT 250. 19. Pertinently, the Petitioner has submitted that the issue involved in these instant proceedings were also raised before the High Court of Judicature at Bombay in the case of Smarte Solutions Pvt. Ltd. v. Union of India & Ors., Writ Petition (Civil) No. 503/ 2021. The Division Bench of the Bombay High Court vide Judgment dated 27.07.2022 has held as under: "14. Undoubtedly, in terms of eligibility Clause 3.08(f) of the FTP, the condition is of having an active IEC number at the time of rendering services for claiming reward. It is to be examined whether the said condition is inconsistent or casts an additional obligation on the exporter which was not intended or led under the principal statute. The learned counsel for the petitioner would submit that the FTP has been framed in pursuance of powers delegated under Section 5 of the FTDR Act. It is the prime submission that FTP being delegated legislation, it should be in conformity with the principal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itional restriction of having IEC number at the time of rendering services which was not intent or purport of the statute. Therefore, we are of the considered view that the said condition is against the principal legislation and therefore, it cannot be termed as of mandatory nature for availing benefits under the scheme. 17. In that view of the matter, we hereby allow the petition and direct the respondents to consider the petitioner's application without insisting for an active IEC number at the time of rendering services. The respondents shall take appropriate decision within three months from the date of receipt of this order and shall communicate its decision to the petitioner. 18.Writ petition stands disposed of in above terms." (emphasis supplied) 20. In sum and substance, the submission of the Petitioners is that they cannot be denied the substantive benefit for a mere procedural lapse and that the actions of the Respondents has violated their fundamental rights under Articles 14, 19(1)(g) as well as rights under Article 300A of the Constitution. Further, that paragraph 3.08(f) of the FTP 2015-20 is ultra vires its Parent Act i.e., the FTDR Act so far as it directs ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fees and uploading requisite documents, corresponding to the changes sought. (e) Detailed guidelines for applying for e-IEC is available at http://dgft.gov.in/exim/2000/iec_anf/iecanf.htm. (a) No export or import shall be made by any person without obtaining an IC number unless specifically exempted. For services exports, IC shall be necessary as per the provisions in Chapter 3 only when the service provider is taking benefits under the Foreign Trade Policy. (b) Exempt categories and corresponding permanent IC numbers are given in Para 2.07 of Handbook of Procedures. (c) Application process for IC is completely online and IC can be generated by the applicant as per the procedure detailed in the Handbook of Procedure. (II) No Export/Import without IC: (i) No export or import shall be made by any person without obtaining an TEC number unless specifically exempted. (ii) Exempt categories and corresponding permanent IEC numbers are given in Para 2.07 of Handbook of Procedures. Effect of the Notification: Para 2.05 on IEC is revised and details on the procedure is shifted to para 2.08 of Handbook of Procedures. F. No.01/93/180/20/AM-13/PC-2(B)/e-5200 ALOK....