TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1738
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....Writ in the nature of certiorari or any other appropriate writ, order or direction, directing that while calling for records pertaining to the Public Notice No. 15/2015-20 dated 14.06.2022 and quash/set aside 'condition x' mentioned in para 2 of the said Public Notice No. 15/2015-20 dated 14.06.2022; (B) The Hon'ble Court may be pleased to issue a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate writ, order or direction, directing Respondent No. 2 to delete Condition No. 3 in the Condition Sheet of the Tariff Rate Quota dated 05.07.2022 issued / allotted to the Petitioner; Prayer substituted as per amendment granted vide order dated 15.09.2022 (C) Issue a writ of mandamus or any other appropriate writ, order or direction while directing the Respondents to permit clearance of 2597.330 MTs of the subject goods, 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 by the Petitioner and to account for the clearance of aforesaid 2597.330 MTs of the subject goods against the aforesaid Tariff Rate Quota dated 05.07.2022 while also extending the ben....
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....nt may also, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order, the import or export of goods or services or technology. 10. As per Para 1.00 of Foreign Trade Policy 2015-2020 (FTP), the Central Government notifies the FTP in exercise of powers conferred under Section 5 of FDR Act. 11. As per Para 1.02 of the FTP, the Central Government can amend the FTP by means of 'Notification', in public interest. 12. 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. 13. Vide Para 2.04 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. 14. Para 2.13 of For....
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....ya-bean oil and Crude Sunflower seed oil by means of Application dated 17.06.2022 along with required documents on 17.06.2022 which was duly acknowledged by the office of Respondent No. 2 vide its Email dated 17.06.2022. 21. Petitioner had entered into Sale Purchase Contract (on bond to bond transfer of ownership basis of warehoused goods) dated 20.06.2022 with Tata International Limited, Gandhidham, Kutch, Gujarat for 7840 MTs of Crude Degummed Soyabean Oil of Edible Grade in bulk (herein after referred to as "the subject goods"). For the subject goods, the aforesaid seller had issued Sale Letter dated 20.06.2022 and had raised Invoice dated 22.06.2022. 22. The aforesaid seller namely Tata International Limited had imported/ purchased the aforesaid 7840 MTs of the subject goods from its foreign supplier and in regard to the aforesaid subject goods, Tata International Limited had filed two Warehouse Bills of Entry No. 9025609 and 9025615 both dated 08.06.2022 and the subject goods were warehoused in public warehouse viz. Emperius Infralogistics Pvt. Ltd., Kandla. 23. The vessel carrying the subject goods had arrived at Kandla port on 09.06.2022 and was granted entry inward on 18....
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....n. The said Bills of Entry were processed by the revenue and on payment of applicable duty, out of charge was given, leaving balance warehoused quantity of 2597.330 MTs. Petitioner had written letters dated 18.08.2022 and 23.08.2022 to the office of Respondent No. 3 (duly received on 22.08.2022 and 24.08.2022 respectively) while stating therein, amongst others, that the goods were urgently needed and that the petitioner had cleared the aforesaid subject goods (5210 MTs) on account of compelling circumstances and without prejudice to its rights and contentions in law to challenge 'condition x'. 28. Petitioner has taken clearance of the aforesaid 5210 MTs of the subject goods on payment of applicable duty and on such clearance petitioner paid excess duty amount of Rs.3,58,33,223/-, which was paid by the petitioner without prejudice to its rights and contentions in law. 29. The present petition came up for hearing before this Court on 25.08.2022 and after hearing both sides and taking note of the aforesaid subsequent developments, this Court vide order dated 25.08.2022 permitted clearance of the balance quantity on 2597.330 MTs of the subject goods on the petitioner furnishing bank ....
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....by the Central Government. 33. It was further submitted that the impugned 'condition x' is without jurisdiction and cannot be sustained in law inasmuch as, as per Section 5 of the FTDR Act only the Central Government can formulate and amend the FTP and further as per Section 6(3) of the FTDR Act the said power of the Central Government to formulate and amend the FTP cannot be exercised by DGFT. It was submitted 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 para 1.03 and 2.04 of FTP, DGFT by means of Public Notice can notify and amend 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. Power to frame and amend the Foreign Trade Policy vests solely and exclusively in the domain of the Central Government and DGFT can issue Public Notice prescribing and amending only the procedure. It was submitted that both the Public Notices dated 24.05.2022 and 14.06.2022 issued by DGFT, have been issued in terms of the powers vested in DGFT as per Para 1.03 and 2.04 of the FTP and DGFT does not trace....
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....ated January 28, 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 (HS) under the said scheme. Thereafter, Notification No. 38 dated April 21, 2004 was published under Section 5 of the Act on the same lines on which Public Notice dated January 28, 2004 was issued. The exporters of these goods, naturally, felt aggrieved thereby. There was an innocuous amendment to Notification No. 38 dated April 21, 2004 wherein in addition to the Director General of Foreign Trade (for short, 'DGFT') as an Officer to enforce these Notifications, ex-officio Additional Secretary to the Government of India was also added. All such exporters who were affected thereby filed writ petitions in various High Courts, particulars whereof shall be taken note of hereinafter at the appropriate stage. 6. In order to achieve the aforesaid objectives, power is given to the Central Government under Section 3 of the Act to make provisions relating to imports and e....
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....IM 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 January 28, 2004 was without jurisdiction. An additional ground of retrospectivity was also taken to challenge the Public Notice. It was also argued that DGFT by the said Public Notice was seeking to impose additional conditions, not forming part of the original policy which was again impermissible. 93. In order to answer this question, we have to first determine as to whether this Public Notice dated January 28, 2004 is only an amendment to Handbook of Procedure or it tinkers with the EXIM Policy. To answer this question, we may first go into the Scheme of the Act. For this purpose, Section 5 as well as Section 6 of the Act are to be taken note of in the first instance and read as under: "5. Foreign Trade Policy.-The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner, amend that policy: Provided that the Central Governm....
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....andbook (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)". 98. From the aforesaid explanation, we take it that the Public Notice dated January 28, 2004 was published in the Gazette of India in accordance with the requirement of law. The question, however, is as to whether by this Public Notice, DGFT was only carrying out the EXIM Policy or this Public Notice amounted to change in the said EXIM Policy. It is crystal clear that the Public Notice alters the provisions of EXIM Policy. It would, therefore, amount to amending the EXIM Policy, whether clarificatory or otherwise. There may be a valid justification and rational for exclusion of four items contained therein, as pleaded by the Union. However, it had to be done in accordance with law. When the DGFT had no power in this behalf, he could not have excluded such items from the purview of EXIM Policy by means of Public Notice. The power of DGFT is only to be exercised for procedural purposes and both the High Courts have rightly remarked that para 3.2.6 inserted by public notice go....
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.... & Coins worth over Rs. 958 crores. 7. Thereafter, DGFT, vide the impugned Public Notice dated 26th September 2019, disallowed the issue of Advance Authorization for two export items namely "Gold Medallions and Coins" or "Any Jewellery manufactured by fully mechanized process". 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 in cases 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 Foreign Trade (Development & Regulation) Act, 1992, (hereinafter the "FTDR Act"), the circular is ultra vires and is liable to be quashed accordingly. 18. Per Contra, it is the contention of the Ld. Counsel for the Respondent that vide the Public Notice, DGFT has only amended the procedure followed under the FTP for ....
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....Trade Policy (2015-2020), under Para 1.03 empowers the DGFT to notify Handbook of Procedures for the purposes of laying down the procedures to be followed by exporter or the importer and the same reads as under :- "1.03 Hand Book of Procedures (HBP) and Appendices & Aayat Niryat Forms (AANF) Director General of Foreign Trade (DGFT) may, by means of a Public Notice, notify Hand Book of Procedures, including Appe ndices 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 whe....
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....e issued as per the provisions of FTDR Act and FTP and HBP and the applicable duty is defined under Section 15 of the Customs Act, 1962. It was submitted that therefore the procedural provision/ 'condition x' runs contrary to the Act itself apart from Para 2.13 of FTP. It was submitted that as per Section 15 of the Customs Act, 1962 relevant date for imposition of applicable duty is the date of filing of Bill of Entry and import gets complete when the goods are cleared from the customs barrier. Therefore in view of Para 2.13 of FTP and Section 15 of the Customs Act, 1962 it does not matter where the goods are before that relevant date for the purpose of application of duty exemption. 37. It was submitted that the contention raised by the respondent that DGFT had issued subject Public Notices in his capacity as Ex-officio Addl. Secretary to the Government of India and had authenticated the same accordingly is not correct. It was submitted that from bare perusal of Public Notice dated 14.06.2022 it is evident that the decision was taken by DGFT while amending para 2 of Public Notice dated 24.05.2022 while incorporating amongst others 'condition x' therein, in terms of para 1.03 and ....
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....out jurisdiction as DGFT does not have the power to amend the FTP. In support of his submission, reliance is placed on the following decisions: i) In case of Dunlop India Ltd. & Madras Rubber Factory Ltd Vs Union of India reported in 1983 (13) ELT 1566 (SC), wherein Hon'ble Supreme Court held as under : "40. At one stage Mr. Sanghi pointed out that in certain Bills of Entry of Dunlop India Limited, their Agents, Messrs, Mackinnon, Mackenzie & Co., Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Laitex. This, according to Mr. Sanghi, clearly shows how the appellants them selves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for. we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits. ii) In....
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.... applied for license/authorization on 17.06.2022 and therefore, the petitioner was aware about of the terms and conditions notified at the time of applying for license/authroisation. Therefore, when the petitioner was granted Tariff Rate Quota Authorisation on 05.07.2022 for import of Crude Soya-bean oil and Crude Sunflower seed oil, same cannot be applied to the transactions which was entered prior to the said date as the Bills of Lading dated 04.06.2022 and 07.06.2022 which are prior to the application made by the petitioner for TRQ license and the vessel carrying the said goods arrived at Mangalore port on 30.06.2022 and Warehouse Bill of Entry was filed on 27.06.2022. It was therefore, submitted that as per section 3(2) of FTDR Act when the petitioner was granted TRQ license, date of license would be relevant date for availing the benefits of said quota and the petitioner could not have taken advantage of the import of goods made prior to the said date. 44. It was further submitted that the notification issued by DGFT is in exercise of powers of the Central Government and therefore, permitting the import of goods against TRQ quota which are already imported would lead to stock....
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....rticularly in paragraph Nos. 98 to 100 thereof. 48. The contention of the respondents that the DGFT is also the Ex-officio Additional Secretary to the Government of India and therefore, the public notices has been issued in such capacity and therefore, meets the test of Kanak Export (Supra) is rejected by us for the reason that it would be apparent from the perusal of the public notice dated 14.06.2022 that "Ex-officio Additional Secretary to the Government of India" only describes the post held by the DGFT and does not reference the power exercised by him. Therefore, it is clear to us that the public notices have been issued by the DGFT as DGFT and not as the Central Government under Section 5 or 6(3) or 3(2) of the FTDR Act. 49. Further, as per Section 25(1) of the Customs Act, 1962, the Central Government has the power to grant exemption from payment of duty. Section 15 provides the relevant date for the determination of the rate of duty and tariff valuation of the imported goods. Section 15(1)(b) speaks of the rate of duty applicable in case of goods clear from a warehouse under Section 68, to be the duty in force on the date on which the bill of entry for home consumption is....