TaxTMI 
TaxTMI 
2026 (4) TMI 1292
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.... Mr. Dhanesh Shah, Nos. 1 and 2 in WP/2493/2026, WP 3678/2024. For the Customs Department/Respondent: Mr. Yogendra Mishra with Ms. Jaimala Ostwal with Ms. Ruju Thakkar with Ms. Sangeeta Yadav, No.3 in WP 2310/2024, WP 2493/2026 and WP 8744/2024, for Respondent Nos. 4,5,7 in WP 3678/2024. JUDGMENT (PER G. S. KULKARNI, J.). 1. Rule returnable forthwith. Respondents waive service. By consent of the parties, heard finally. 2. As this batch of petitions raise common issues of law and involve similar facts, the same are being disposed of by this common judgment. 3. The petitioners seeks relief that the petitioners are entitled to the export Rebate under the Remission of Duties and Taxes on Export Products Scheme (RoDTEP) for exports of white refined sugar for different periods as set out in memos of these petitions. 4. The petitioners in these petitions are inter alia engaged in the export of "white sugar (crystal)" stated to be bearing ITC(HS) Code 17011490. The petitioners have contended that RoDTEP was promulgated vide Notification dated 17 August 2021 issued by the Government of India, retrospectively amending paragraph 4.01 of Chapter 4 of Foreign Trade P....
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....y were also availing and utilizing duty credit under RoDTEP during the relevant period subject to fulfillment of all conditions including realization of sale proceeds for export made. By Notification No. 76/2021-Customs (NT) dated 23 September 2021 issued in exercise of powers under sub-section (1) of Section 51B of the Customs Act, the Central Government has notified the manner in which the duty credit for goods exported under RoDTEP Scheme be availed, subject to the conditions and restrictions as specified thereunder, in accordance with paragraph 4.01(e) of the Foreign Trade Policy. It was provided that the duty credit shall be subject to the conditions inter alia that the export categories or sectors listed in Table 1 annexed to the said notification, shall not be eligible for duty credit under the Scheme. In the said Schedule Item No. 1 provided for the goods which are restricted or prohibited for export under Schedule 2 of Export Policy in ITC-HS. Also by subsequent Notification No. 10/2015-20 dated 24 May 2022 amendment was made in the export policy for sugar, in order to maintain domestic availability and price stability of sugar, thereby restricting the export of sugar in t....
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....ers to export a total quantity of 10LMT of sugar within 90 days from the date of the said order as per the application of the exporter, details of which are set out in Annexure I (application wise) and Annexure II (exporter wise), in relation to the sugar season 2021-22. All the petitioners figured in the said list as notified, with the appropriate quantity of export being permitted to them. It is the petitioners' case that accordingly the export application was discharged by the petitioners. 11. However, what has transpired thereafter is that having undertaken the export, benefit of RoDTEP was denied to the petitioners on the ground that it was a restricted export in view of the Notification No. 10/2015-2020 dated 24 May 2022. 12. There is some background litigation in regard to the grievance of the petitioners being asserted in these petitions. One of the petitioners in the present batch of petitions namely Shree Renuka Sugars Ltd. being aggrieved by denial of the benefits under RoDTEP, had approached the High Court of Gujarat in the proceedings of Special Civil Application No. 2186 of 2023. In regard to the said proceedings, the situation was to the effect that as Shree Re....
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....arties and having considered the facts of the case which are identical to the case of M/s. Shree Renuka Sugars Ltd. (supra), we are of the opinion that the respondents could not have denied the benefit of rebate under the RoDTEP scheme to the petitioners, more particularly, when the petitioners have exported product after fulfilling the conditions as prescribed by the Directorate of Sugar as well as the Notifications issued by the Central Government from time to time. The Coordinate Bench of this Court has also passed the order permitting rebate to the petitioner of the said case. 10. In the facts of the case, vide Notification dated 24th May 2022, the category of sugar (raw sugar, white sugar and refined sugar) is changed from free to restricted category with policy conditions, which are as under: "(i) With effect from 1 June, 2022 upto 31" October 2022 oruntil further orders, whichever is earlier, export of sugar is allowed only with specific permission from Directorate of Sugar, Department of Food and Public Distribution (DFPD), Ministry of Consumer Affairs, Food & Public Distribution. (ii) Detailed procedure for issue of necessary permissions for expo....
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.... Reward Scheme (RODTEP) Directorate General of Foreign Trade, Vanijya Bhawan, 'A' Wing, 16 Akbar Road, New Delhi-110011. Sir. Sub: Grant of benefit of RoDTEP Scheme -M/ Reg. Kindly refer to SCA No. 2186 of 2023 was filed by M/s Shree Renuka Sugars before the Hon'ble High Court of Gujarat in the matter of RODTEP on Export of Sugar wherein one of the respondents is DGFT. 2. The Hon'ble High Court vide order dated 13.04.2023 in SCA No. 2186 of 2023 filed by M/s Shree Renuka Sugars is reproduced as under: 5. As the controversy unfolds as above, the court is of the view that the following directions would serve the ends of justice. Accordingly it is provided that, (i) The petitioner shall be entitled to claim the RoDTEP Scheme benefit in respect of the exports of white refined sugar at the rate permissible. Even if such benefit is not claimed or mentioned in the shipping bills, the petitioner is permitted to make necessary application seeking such benefit in respect of the consignments concerned. (ii) The passage of time in making such applications which would occur as amount would not be....
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....2024 as detailed under: We are not inclined to interfere in the matter. The Special Leave Petition is hence dismissed. 6. The department on direction of DGFT has preferred to file Review Petition in respect of the above Hon'ble Supreme Court of India order dated 09.07.2024. However, Under Secretary (Legal) vide letter dated 30.07.2024 informed that after the approval from Board, the proposal approval from Board, the proposal was referred to the Department of Legal Affairs for seeking opinion of Ld. Law Officer, regarding feasibility of filing Review Petition. In this matter, Shri N. Venkataraman, ld. ASG, has opined as under: "Review Petition is not recommended. The Supreme Court is less likely to interfere as ultimately it was a Central Government Litigation. The grounds pointed out only shows that the appeal could have been drafted better but does not indicate any error apparent on the face of the record requiring the SC to invoke its review jurisdiction." 7. In view of the above, the matter has attained the finality. therefore, the applicant; M/s Shree Renuka Sugars is eligible for RODTEP benefit in light of the Hon'ble High Court....
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....od and Public Distribution (DFPD) and in the manner as notified, in regard to the quota of export allocated to each of these petitioners. 18. It is thus submitted that a legitimate benefit which was otherwise entitled to the petitioners was denied on a patent arbitrary consideration and on a misreading of the Notification dated 24 May 2022. It is submitted that there is no justification whatsoever for such benefits to be denied to the petitioners and/or any actions for recovery being taken against some of the petitioners on the ground that the benefit of RoDTEP was arbitrarily availed on behalf of the petitioners. It is therefore, submitted that, in any event, the decisions of the High Court of Gujarat in Shree Renuka Sugars Ltd. (supra) and M/s. Satyendra Packaging Ltd. (supra), have attained finality in view of the Special Leave Petition being dismissed by the Supreme Court, as also the department accepting, that such orders had attained finality and benefit being already granted to Shree Renuka Sugars Ltd. as also M/s. Satyendra Packaging Ltd. It is, however, stated that although benefits were granted, the interest was not granted and for which independent proceedings were fi....
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....propriate quota as may be approved by the Directorate of Sugar. If this is held to be an accepted position by the department, then certainly the benefits of the scheme cannot be denied to the petitioners, who have acted upon the scheme and have undertaken exports which certainly are conducive to the national interest and integral to the foreign trade policy. 23. In any event, the issue needs to be held to be concluded in view of the decision of the High Court of Gujarat in Shree Renuka Sugars Ltd. (supra) and M/s. Satyendra Packaging Ltd. (supra), which have attained finality in view of the Supreme Court dismissing the SLPs. 24. There is substance in the contention of Mr. Jain, learned counsel for the petitioners, that once the department has accepted the decision of the High Court of Gujarat in Shree Renuka Sugars Ltd. (supra) and M/s. Satyendra Packaging Ltd. (supra) where necessarily the principles of law as laid down in the decision of the Division Bench of this Court in Maneklal Chunilal & Sons Ltd. Vs. The Commissioner of Income Tax (Central) Bombay AIR 1954 Bom 135 ought to apply. Chief Justice Mr. Chagla speaking for the Bench had observed that as a matter of uniform ....
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....partment before the other High Courts. The situation further worsens by the department asserting a contrary position before such different High Courts, thereby inviting different interpretations and orders leading to judicial chaos. Such an issue certainly needs to be addressed by the Government of India either in the National Litigation Policy, so that uniform policy in respect of such issues is followed in proceedings before different High Courts in relation to Central Legislations and more particularly in tax matters. However, this certainly with the only exception, as observed in Maneklal Chunilal & Sons Ltd. (supra) qua a judgment of a High Court dealing with identical or comparable provisions, if it is regarded as per incuriam. 26. In the light of the above discussion, in our opinion, the petitioners would become entitled to the benefits of the RoDTEP, wherever not granted, and in those cases where the benefit was granted and recovery was initiated, status quo ante would be required to be maintained by granting the petitioners a refund of the said amount along with an appropriate rate of interest. 27. As a consequence of the above discussion, the petitions are according....