TaxTMI 
TaxTMI 
2023 (3) TMI 186
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....ted 05.07.2022 vide Annexure - M issued / allotted to the Petitioner. (c) Issue a Writ of Mandamus or any other appropriate writ, order or direction while directing the Respondents to permit clearance of balance quantity of the subject goods i.e., 1973.04 MTs. after clearance from the customs bonded warehouse in terms of Section 68 of the Customs Act, 1962 on production of Tariff Rate Quota dated: 05.07.2022 vide Annexure-M by the petitioner and also extended the benefit of Notification No. 30/2022-Cus dated: 24.05.2022 on such clearance. (d) Issue a writ of Mandamus or any other appropriate writ, order or direction while directing the Respondents to account for the clearance of 4000 MT's of of the subject goods, as stated above, against the Tariff Rate Quota dated: 05.07.2022 vide Annexure-M issued to the petitioner while also extending the benefit of Notification No. 30/2022- Cus dated: 24.05.2022 vide Annexure-F on such clearance and refund excess duty of Rs.3,79,33,896/- paid on clearance of the said 400 MTs of the subject goods with interest @ 12 % p.a. (e) Pass any other appropriate Order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances....
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....er the ITC (HS) Schedule 1 - Import Policy, 2022. Further in regard to the aforesaid goods, there is no restriction for trading thereof by State Trading Corporations. 2.2 Petitioner contends that as per the aforesaid Public Notice No. 10/2015-20 dated 24.05.2022, fresh applications for allocation of TRQ Authorisation/License were called for by the respondents. Petitioner was eligible for all the conditions mentioned therein and the Petitioner accordingly applied online to the office of Respondent No.2 for allocation of TRQ Authorisation/ License for import of Crude Soya-bean oil and Crude Sunflower seed oil by means of Application dated 17.06.2022 and the said application was duly acknowledged by the office of Respondent No.2 vide its email dated 17.06.2022. 2.3 Petitioner submits that subsequently, Respondent No.2-DGFT, in exercise of his powers under Para1.03 and 2.04 of FTP, issued another Public Notice No.15/2015-20 dated 14.06.2022 amending para-2 of the aforesaid Public Notice No.10/2015-20 dated 24.05.2022 in addition to imposing/inserting certain further conditions. Amongst others, an additional condition was imposed as per 'condition x' whereby import consignments landin....
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.... dated 07.07.2022 and 12.07.2022 seeking clearance of 500 MTs and 1000 MTs respectively of the subject goods for home consumption. The said Bills of Entry were processed by the revenue and on payment of applicable duty out of charge were given. 2.6 Petitioner had written letters dated 11.07.2022 and 13.07.2022 to the office of Respondent No.3 while stating therein, amongst others, that the Petitioner had cleared the aforesaid subject goods (2000 MTs) on account of compelling circumstances and without prejudice to Petitioner's rights and contentions in law to challenge 'condition x' imposed by Public Notice No. 15/2015-20 dated 14.06.2022. Petitioner had taken clearance of 2000 MTs of the subject goods on payment of applicable duty and on such clearance, Petitioner had paid excess duty amount of Rs.1,89,66,948/-, without prejudice its rights and contentions in law. 2.7 It is contended that subsequent to filing of the present petition on 20.07.2022, petitioner urgently needed the subject goods to keep its manufacturing unit functioning and to avoid losses. Petitioner wanted to clear the goods against the aforesaid TRQ license and had approached the Department accordingly, who point....
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.... the petitioner as regards the legality and validity of the impugned notifications and contend that there is no merit in the petition and the same is liable to be dismissed. 4. Heard learned counsel for the petitioner and learned counsel for the respondents-revenue and perused the material on record. 5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submitted that the impugned 'condition x' in the Public notice dated 14.06.2022 issued by the DGFT is illegal, arbitrary and without jurisdiction or authority of law, inasmuch as the same is contrary to Clause 2.13 of the FTP and has the effect of altering and amending the FTP which is impermissible in law, since the same lies within the exclusive domain of the Central Government and not the DGFT. The FTP is framed by the Central Government under the Foreign Trade(Regulation and Development Act), 1992 (for short, 'the FTDR Act') and the same provides for the DGFT to issue a Handbook of Procedure by way of a Public Notice and also amend/vary/alter the Handbook of Procedure by way of a Public Notice. The DGFT is empowered or authorized ....
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....RICAS LLP & others - 2020 SCC Online SC 675. (ii) Chowgule & Company Limited vs. Assistant Director General of Foreign Trade & Others - 2022 Live Law (SC) 919; (iii) SCA No.14959/2019 by the Gujarath High Court; (iv) W.P.No.15921 to 15924/2018 etc., by the High Court of Madras; (v) W.P.No.552 & connected cases/2019 by the High Court of Andhra Pradesh; (vi) DGFT & Anr. Vs. Mustafa Traders & Anr.- W.A.No.480/2011 dated 02.11.2020 - High Court of Kerala at Ernakulam. 7. The only question that arises for consideration in the present petition is with regard to the legality and validity of 'condition x' mentioned in para-2 of the Public Notice at Annexure-J dated 14.06.2022 and consequential condition No.3 in the Condition sheet of the TRQ dated 05.07.2022 (Annexure-M) issued / allotted to the petitioner, whereby the subject goods of the petitioner lying at Indian Ports (under warehousing etc.,) before the date of issuance of TRQ licence are directed by the respondents not to be considered for import clearance under TRQ. 8. Before adverting to the rival contentions, it is necessary to refer to certain provisions of the Foreign Trade (Development and Regulation) Act, 199....
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....es Hand Book of Procedure (HBP), amongst others, for laying down the procedure to be followed by an exporter or importer for the purpose of implementation of the FTP. * Para 1.03 of FTP is reproduced below for ready reference: 1.03 Hand Book of Procedure (HBP) and Appendices & AayatNiryat Forms (AANF) - Director General of Foreign Trade (DGFT) may, by means of Public Notice, notify Hand Book of Procedure, 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. As per Para2.04 of FTP, DGFT may by means of 'Public Notice' specify procedures, amongst others, to be followed by an exporter or importer or by any Licensing / Regional Authority or by any other authority for purpose of implementing provisions of FT (D&R) Act, the Rules and the Orders made there under and provisions of FTP. Para 2.04 of FTP is reproduced below for ready reference: Para 2.04 Authority to specify Procedure - DGFT may, specify Pr....
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....n ports (under warehousing etc) before the date of issuance of the TRQ license shall not be considered for import clearance under TRQ and consequently, the subject 'condition x' is contrary to Para2.13 of FTP and the same cannot be sustained in law, particularly when the Hand Book of Procedure is meant to lay down the procedure for implementation of the FTP and the same cannot override the provisions of the FTP which is formulated and framed by the Central Government and not by the DGFT. 9. It is significant to note that as per Para 1.02 of the FTP, only the Central Government can amend the FTP by means of Notification, in public interest; further, as per Para1.03 and Para2.04 of the FTP, the DGFT by means of Public Notice can notify and amend only the Hand Book of Procedure, amongst others, for laying down the procedure to be followed by an exporter or importer for the purpose of implementation of the FTP. In other words, while the power to amend the FTP vests solely and exclusively with the Central Government, the DGFT has the power to issue a Public Notice prescribing and amending only the procedure; in this context, a perusal of the Public Notice dated 24.05.2022 issued by the....
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.... Government can make provision for prohibiting, restricting or otherwise regulating import or export of goods. Issuance of license is only procedural aspect and in any case, the DGFT cannot impose conditions and restrictions in license which are contrary to FTP and FTDR Act and any such condition cannot be sustained in law. On this score also, the impugned 'condition x' is not sustainable in law. 13. Under similar circumstances in Kanak Export's case supra, the Apex Court held as under: 2. Vide Notification No. 28 dated 28-1-2004, the Central Government sought to amend certain provisions of the EXIM Policy by inserting Notes 1 to 5, which was unpalatable to the exporters of the goods mentioned therein as, according to them, under the guise of the said Notes, some benefits which had already accrued to these exporters under the EXIM Policy were taken away. Vide Public Notice dated 28-1-2004, the Government announced exclusion of export performance in relation to four classes of goods mentioned in Para 2 thereof from computation of the entitlement under the Scheme and, at the same time, sought to disallow the import of agricultural products falling under Chapters I to XXIV of ITC (....
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....uthority, who passes the order, is an officer subordinate to DGFT. In those cases, where the adjudicating officer is DGFT himself, appeal lies to the Central Government. Under Section 16, revisionary powers are conferred upon the Central Government. These powers of appeal and revision also cannot be delegated by virtue of Section 6(3) of the Act. Section 19 again confers power upon the Central Government to make rules for carrying out the provisions of the Act generally and in respect of various matters specifically enumerated in subsection (2) of Section 19. This power of the Central Government also cannot be delegated. 9. It may be noted that under Section 5 of the Act, the Central Government has been formulating EXIM policies from time to time. The Policy with which we are concerned is the EXIM Policy for the period 2002-2007, which was substituted by EXIM Policy 2004-2009. 10. The EXIM Policy of 2002-2007 was announced and came into force from 1-4-2002. Amendment to this Policy was notified on 31-3-2003 and the revised edition of the Policy was to come into force from 1-4-2003. Even though the Central Government is generally entitled and empowered to carry out amendments ....
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.... competent authority for the purposes of implementing the provisions of the Act, the Rules and the Orders made therein and this Policy. Such a procedure was to be stipulated and included in the Handbook (Vols. I & II), Schedule of DEPB and in ITC (HS) and published by means of a public notice. It was permissible to amend this procedure from time to time. 86. The next issue relates to the validity of the Public Notice dated 28-1-2004. The question that is posed for determination on this issue is as to: III. Whether Public Notice dated 28-1-2004, issued by DGFT, which sought to exclude the export performance related to class of goods, is without jurisdiction? 87. The main submission of the petitioners, which was before the High Courts as well and reiterated before us, was that the Public Notice dated 28-1-2004 seeks to amend the EXIM Policy and DGFT does not have any such power inasmuch as this EXIM Policy is statutory which is issued under Section 5 of the Act by the Central Government and, therefore, it is only the Central Government which has the power to make amendments to the EXIM Policy. Therefore, the Public Notice issued by DGFT dated 28-1-2004 was without jurisdicti....
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....ernment 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." 90. From the aforesaid, it is clear that Section 5 provides that the Central Government may, from time to time, formulate and announce, the EXIM Policy. This has to be done by issuing/announcing this Policy by way of notification in the Official Gazette. The Central Government also has the power to amend the Policy so announced by adopting the same procedure i.e. by issuing notification in the Official Gazette. It is not in dispute that the EXIM Policy in question was issued by notification in exercise of powers conferred under Section 5 of the Act. This Policy, thus, is infested with statutory flavour. 91. For the purpose of carrying out the objectives of the Act which includes implementation o....
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....be followed by an exporter or importer or by any licensing or any other competent authority for the purpose of implementing the provisions of the Act, the Rules and the Orders made thereunder and this Policy. Such procedures shall be included in the Handbook (Vol. 1), Handbook (Vol. 2), Schedule of DEPB Rate and in ITC (HS) and published by means of a public notice. Such procedures may, in like manner, be amended from time to time. The Handbook (Vol. 1) is a supplement to the EXIM Policy and contains relevant procedures and other details. The procedure of availing benefits under various schemes of the Policy are given in the Handbook (Vol. 1)." 93. It is explained by the learned counsel for the Union of India that a notification issued under Section 5 of the Act or any change brought about by DGFT in exercise of the powers under Para 2.4 of the Import and Export Policy in the Handbook Procedure, by way of a public notice the same are gazetted and notified in the Gazette of India. It is also pointed out that the notification/public notices issued relating to non-statutory rules, regulations, order and resolutions issued by the Ministries of Government of India (other than the ....
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....ar it excludes the aforesaid four items, is ultra vires. 14. The aforesaid judgment of the Apex Court has been followed by the Delhi High Court in M.D. Overseas's case supra. 15. Insofar as the judgment of the Apex Court in AGRICAS LLP's case supra relied upon by the respondents is concerned, a perusal of para-15 of the said judgment will indicate that the same were issued by the Central Government and that the DGFT had performed only the ministerial act of publication and that the decision to amend and issue the Notification was that of the Central Government. The said judgment is inapplicable to the facts of the instant case, since, as stated supra, the power to amend the FTP is vested solely and exclusively with the Central Government in terms of Para 1.02 of the FTP. In this context, as is clear from the Public Notice dated 14.06.2022 containing the impugned 'condition x', the said Public Notice is traceable to Para 1.03 and Para 2.04 of the FTP and not to Para 1.02 of the FTP. To put it differently, amendment to the FTP can be done only by the Central Government under Para 1.02 of the FTP, whereas amendment to the procedure can be done by the DGFT under Para 1.03 and Para ....