TaxTMI 
TaxTMI 
2026 (2) TMI 485
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....f the Supreme Court in Director General of Foreign Trade v. Kanak Exports (2016) 2 SCC 226. Acceptance of the submissions of Mr. Nigam would require this Court to rule, in favour of the appellant, contrary to the said decision. 4. The observations of the Supreme Court against the appellant are so trenchant that we need merely reproduce them verbatim: "V. Whether, in the cases of these exporters, the exports shown by them can be treated as actual exports entitling them to avail the benefit of the Scheme? 115. This issue would be intertwined with other related issue, namely, whether the notification has retroactive operation or it is retrospective in nature. Both these aspects are to be dealt with simultaneously in order to provide suitable and right answer to the question posed. The case of the exporters, as noticed above, is that since they had already fulfilled the requirement of "incremental growth in exports" which they were required to fulfil between 1-4-2003 to 31-3-2004, a vested right accrued in their favour to get the special incentive in terms of the Scheme which, of course, was to be availed from 1-4-2004. The case of the Government, on the other hand....
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.... For M/s Adani Exports, over 80% of export turnover came for diamonds and supplies from status-holders not meeting the minimum turnover and growth criteria Adani Exports Ltd., Ahmedabad Exports(crores) Total exports for the year 2003-2004 of which 4657 1. Rough, and re-exported polished diamonds 2475 2. Supplies taken from status-holder not meeting the minimum turnover and growth criteria 1316 Share of the above 2 categories in the total exports 81.4% Export surge of 1135% for M/S Adani Exports came in 2003-2004 while for the past six years their exports were declining It is pertinent to note that except the abovementioned persons no other exporter in the country has challenged the said Notifications or the Public Notices dated 28-1-2004 and 21-4-2004 respectively. 119. It was also brought to the notice of DGFT that some of the exporters have procured rough diamonds from local firms and exported the same by a 5% loss as they were confident of covering up the loss by receiving the 10% DFCE incentives offered by the Government. All these aspects are discussed in much details earlier an....
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....ue addition. However, in this process strangely enough per unit price of the gold exported was less than per unit price of gold imported. 120.8. A few exporters including the petitioners have purchased exports of other firms to inflate their turnover. Contracts have been signed between the petitioners and other exporters that the petitioner will provide marketing and other services and act as third-party exporter. According to reports status holders were purchasing exports made by other parties at a premium with a view to show incremental growth of 25% or more in exports without having actually achieved such growth. 121. In such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioner exporters had (sic not) actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the Notifications dated 21-4-2004 and 23-4-2004, did not take away any vested right of these exporters and amendments were necessitated by overwhelming p....
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....tructive of judicial discipline for this Court to even countenance such submissions, in view of Articles 141 and 144 of the Constitution of India. 8. We, therefore, have merely recorded the submissions advanced before the Court. Needless to say, they are rejected. 9. Mr. Nigam further submits that the judgment of the Supreme Court obligated the respondents to re-examine the entitlement of the appellant to export incentives under the DFCE Scheme. 10. A reading of para 121 of the report from the judgment of the Supreme Court reproduced supra makes it clear that the submissions cannot be accepted. The Supreme Court has clearly held, in so many words, that the appellant was one of those exporters who resorted to pernicious and blatant misuse of the provisions of the DFCE Scheme and that, therefore, no vested right of the appellant and other such exporters had been divested by the notification dated 21 April 2004 and 23 April 2004. 11. The Supreme Court has gone on, in the same paragraph, to state that in such circumstances, it could not be said that the appellant's right had been deprived in any way as no right had in the first place accrued in their favour, their export th....