TaxTMI 
TaxTMI 
2023 (3) TMI 186
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.... in the condition sheet of the Tariff Rate Quota dated 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....
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.....2022. It is also contended that the aforesaid goods are freely importable as per 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 addit....
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....TRQ license for such clearance. Petitioner had accordingly filed Ex-Bond Bills of Entry 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....
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.... admitting the facts leading to the present petition, respondents deny the various contentions of 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....
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....arned counsel for the respondents has placed reliance upon the following judgments:- (i) Union of India & others vs. AGRICAS 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 unde....
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....R) Act, 1992, as amended from time to time, reserves the right to make any amendment to the FTP, by means of notification, in public interest. * As per Para 1.03 of FTP, DGFT by means of 'Public Notice' notifies 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....
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....ssuance of TRQ licence, the impugned 'condition x' in the Public Notice dated 14.06.2022 stipulates that only import consignments landing at Indian Ports after the date of issuance of TRQ license shall only be considered for clearance under TRQ and any quantities lying at the Indian 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....
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....ion for prohibiting, restricting or otherwise regulating the import or export of goods or services or technology. The contention of the Respondents that in terms of Section 9 of the FTDR Act, the DGFT can impose conditions and restrictions in license cannot be accepted, as only the Central 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 28-1-2....
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....FT or an officer subordinate to him. Sections 15 and 16 relate to appeal and revision which can be filed against the orders passed by the adjudicating authority against any person committing contravention of the provisions of the Act, the Rules, the Orders and the EXIM Policy. The appeal lies to DGFT if the adjudicating authority, 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 E....
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....ng in mind the aforesaid principal objectives, Para 2.1 made it clear that exports and imports shall be free, except in cases where they are regulated by the provisions of the said Policy or any other law for the time being in force. As per Para 2.4, DGFT was authorised to specify the procedure which needs to be followed by an exporter or importer or by any licensee or other 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....
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....rade Policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette. 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." 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 Centr....
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....in force and shall be deemed to have been made, issued or done under this Policy. Licence/certificate/permissions issued before the commencement of this Policy shall continue to be valid for the purpose for which such licence/certificate/permission was issued unless otherwise stipulated." Para 2.4 of the Import and Export Policy dealing with the procedure provides that: "The Director General of Foreign Trade may, in any case or class of cases, specify the procedure to 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 cou....
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....beyond the procedural conditions. 95. In fact, the Government itself realized the same, namely, the DGFT had no such power, it is for this reason that what was sought to be achieved by the said Public Notice, was formalized by the Central Government by issuing Notifications dated April 21 and 23, 2004 in exercise of powers conferred on the Central Government by Section 5 of the Act and the same four items were excluded. 96. Therefore, we hold that public notice dated January 28, 2004 issued by DGFT, so far 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 pow....