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2014 (2) TMI 1013 - HC - CustomsValidity of para 2.3 of FTP and Para 8.3.6 of the HOP - Unconstitutional and ultra vires the FTDR Act or the FTP - Power of DGFT - Delegation to DGFT - Power to frame Duty Draw Back Rules - Power of DGFT to re-verify or re-determine the duty drawback benefits - Held that - DGFT has no power to legislate - the power to frame Duty Draw Back Rules can be legislated by the Central Government only and the same cannot be delegated to the DGFT - The power to frame Duty Draw Back Rules under the FTDR Act can be legislated by the Central Government only in exercise of power conferred under Section 19 in the manner prescribed under the FTDR Act and the same cannot be delegated to the DGFT as expressly prohibited by Section 6(3) of the above Act. The power granted to the DGFT under FTP is to lay down the procedure to be followed by an exporter or by any licensing/regional authority or by any other authority for the purposes of implementing provisions of FTDR Act, Rules and the orders made there under and FTP and, therefore, those by necessary implication excludes the Rule making power conferred under Section 19 of the FTDR Act inasmuch as the powers conferred under Section 19 cannot be re-delegated to the DGFT as expressly prohibited under Section 6(3) of the Act. The provisions of the FTDR Act do not grant power to the DGFT or its subordinates to re-determine or re-verify the deemed export benefits if such benefits have been approved or granted as per the provisions of the FTDR Act except by way of review as provided in Section 16. In the absence of any power under FTDR Act, the DGFT or its subordinates cannot assume quasi-judicial power for instance, the power to re-determine or re-verify under the administrative guidelines i.e. Para 7 of the ANF -8 Form. Therefore, by virtue of Para 7 of the ANF -8, the DGFT is deriving the quasi-judicial power which is beyond the provisions of FTDR Act. Although specifically prohibited under section 6 of the Act, the DGFT has been illegally vested with the power to intervene in the subject-matters coming within the purview of Sections 3, 5, 15, 16 and 19 in clear violation of sub-section 3 of Section 6 of the FTDR Act - what is specifically prohibited by the FTDR Act, by taking aid of the HOP, the DGFT has assumed such power in colourable exercise of the power conferred upon it. Binding nature of circular / Clarification issued by board - the interpretation given by the respondent No.2 in terms of Paragraph 2.3 of the FTP, no doubt, binds all the officers or the authorities under the FTDR Act provided however that there is no existing interpretation on the relevant point given by the High Courts or the Supreme Court and at the same time, such interpretation given by the Respondent no. 2 will not be binding upon the High Courts or the Supreme Court while making judicial review of any decision taken by the adjudicating authorities under the Act. Para 7 of the declaration attached with ANF-8 form read with the provisions of HOP cannot lawfully confer any power upon the Respondent No.2 or its subordinates to recall any adjudication under the Act by taking aid of such declaration attached with ANF- form. The right of review, it is needless to mention, is a creature of Statute and according to the FTDR Act, a review can be made only in accordance with the provision contained in Section 16 thereof and in a manner provided therein and not beyond the scope of said Section 16 - Decided in favour of assessee.
Issues Involved:
1. Constitutionality of Para 2.3 of the Foreign Trade Policy (FTP). 2. Validity of Para 8.3.6 of the Handbook of Procedures (HOP). 3. Authority of Para 7 of the declaration attached with ANF-8 form to re-verify or re-determine duty drawback benefits. Issue-wise Detailed Analysis: 1. Constitutionality of Para 2.3 of the FTP: The petitioner challenged Para 2.3 of the FTP, which grants the Director General of Foreign Trade (DGFT) the power to interpret the FTP, HOP, and other related classifications, making such interpretations final and binding. The petitioner argued that this provision violates Articles 14 and 19(1)(g) read with Articles 246 and 265 of the Constitution of India and the FTDR Act. The court held that while the DGFT's interpretations are binding on the authorities under the FTDR Act, they are not binding on the High Courts or the Supreme Court. The court emphasized that judicial authorities' interpretations should prevail over those made by the DGFT to ensure uniformity and adherence to the Constitution. 2. Validity of Para 8.3.6 of the HOP: Para 8.3.6 of the HOP incorporates the Customs and Central Excise Duty Drawback Rules, 1995, mutatis mutandis to deemed exports. The petitioner contended that the DGFT does not have the authority to legislate or incorporate substantive laws by reference, as this power is reserved for the Central Government under Section 19 of the FTDR Act. The court agreed, stating that the DGFT's attempt to incorporate the Duty Drawback Rules through administrative guidelines is ultra vires the FTDR Act and violates the basic structure of the Constitution, particularly the separation of powers. The court declared Para 8.3.6 of the HOP ultra vires the FTDR Act. 3. Authority of Para 7 of the declaration attached with ANF-8 form: Para 7 of the ANF-8 form requires claimants to refund any excess duty drawback determined upon re-verification. The petitioner argued that this provision unlawfully grants quasi-judicial powers to the DGFT and its subordinates, which are not provided for under the FTDR Act. The court held that the power to re-determine or re-verify duty drawbacks must be explicitly conferred by statute and cannot be assumed through administrative guidelines. The court found that the DGFT and its subordinates do not have the authority to re-determine or re-verify duty drawbacks once granted, except through the review process outlined in Section 16 of the FTDR Act. Consequently, Para 7 of the ANF-8 form was declared ultra vires the FTDR Act. Conclusion: The court allowed the writ application to the extent of declaring Para 2.3 of the FTP, Para 8.3.6 of the HOP, and Para 7 of the ANF-8 form ultra vires the FTDR Act and the Constitution of India. The court emphasized the need for adherence to the statutory framework and the separation of powers, ensuring that executive authorities do not overstep their legislative bounds. The petition was allowed without any order as to costs, and a request for a stay of the judgment was refused.
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