TaxTMI 
TaxTMI 
2025 (6) TMI 1738
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....le Court may be pleased to issue a writ of certiorari or 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....
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.... the Director General, as may be specified in the order. 9. As per Section 3(2) of FTDR Act, the Central Government 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 imp....
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....f Rate Quota were called for. Petitioner applied online to the office of DGFT - Respondent No. 2 for allocation of Tariff Rate Quota for import of Crude Soya-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. Em....
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....lls of Entry all dated 18.08.2022 for 3000 MTs and two Ex-Bond Bills of Entry both dated 23.08.2022 for 2210 MTs, seeking clearance of the said goods for home consumption. 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 subseq....
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....t to lay down the procedure for implementation of the Foreign Trade Policy and the same cannot override the provisions of the Foreign Trade Policy, which is formulated and framed 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 t....
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....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 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 ....
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....e main submission of the petitioners, which was before the High Courts as well and reiterated before us, was that Public Notice dated January 28, 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 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: ....
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....isions of the Act, the Rules and the Order 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)". 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 don....
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....xport 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. 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 deleg....
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....rames and findings containing more than 50% silver by weight; (iii) Platinum of fineness not less than 0.900 and mountings, sockets, frames and findings containing more than 50% platinum by weight. (b) Advance Authorisation shall carry an export obligation which shall be fulfilled as per procedure indicated in Chapter 4 of Handbook of Procedures. (c) Value Addition shall be as per paragraph 4.38 of FTP and 4.61 of Handbook of Procedures." 24. Moreover, the Foreign 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 Ord....
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....of the Customs Act, 1962 has the power to grant exemption from payment of duty. Section 15 of the Customs Act, 1962 provides the relevant date for determination of rate of duty and tariff valuation, if any, of the imported goods. As per Section 15(1)(b) of the Customs Act, 1962, in case of goods cleared from a warehouse under Section 68 of the Customs Act, 1962, the rate of duty applicable will be duty in force on the date on which Bill of Entry for home consumption is filed in respect of such goods. Authorisation/License/Scrip can be 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....
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....challenging the public notice(s) since having applied for license based on the public notice(s) is not correct. It was submitted that there is no estoppel in law. 'Condition x' is nonest, void abinitio and without jurisdiction and cannot be sustained in law. The principle of estoppel is procedural in nature and it will have no application to cases where power has been exercised without any authority of law. It was submitted that DGFT vide Public Notice dated 14.06.2022 has amended the provisions of FTP, as stated above and the same is without 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....
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....eleased to the Petitioner. 42. On the other hand, learned advocate Mr. P.Y. Divyeshvar for the respondent submitted that the petitioner has not come with the clean hands and has suppressed the fact that the petitioner had filed similar petition before the Hon'ble High Court of Calcutta and before Hon'ble High Court of Karnataka with same prayers which are pending for disposal. 43. It was submitted that the petitioner had applied to the office of respondent No. 2 for allocation of Tariff Rate Quota (TRQ) for import of Crude Soya-bean oil and Crude Sunflower seed oil and 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....
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....g the Foreign Trade Policy which would have the essence of taking away something from or being contrary to the Foreign Trade Policy itself which is formulated by the Central Government exercising its powers under Section 5 of the FTDR Act. In that view of the matter, 'condition No. x' at Serial No. 3 in the Condition Sheet in the TRQ licence must be held to be outside the powers of DGFT. 47. We are fortified in our view by the clear interpretation of the aforesaid provisions of the FTDR Act laid down by the Hon'ble Supreme Court in its decision in DGFT Vs. Kanak Export (Supra) particularly 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....