9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (5) TMI 1008 - HC - CustomsMaintainability of petition - Duty Free Import Authorization (DFIA) scheme - duty free import of Pesticides - validity period of DFIA licence - Held that - the petitioner was denied of his valuable right to utilize the DFIA for duty free import of Insecticide. Therefore, I do not find any merit in the objections regarding maintainability of the instant writ petition, the same is hereby rejected. Respondents cannot blame the transferee of latches or negligence or for not utilizing the DFIA within validity period, for, that by putting up the DFIA for debating in respect of imported goods at any port despite the instructions issued by respondent no.2, the petitioner would unnecessarily have incurred losses in the form of continued interest, demurrage and detention charges, apart from blocking investment on costs of such goods only to fight cumbersome litigation with the hope of getting due legitimate entitlement. Resultantly, the objection of delay and latches raised by the respondents in the above stated peculiar fact situation is hereby repelled. In the interest of justice, the instant petition merits a decision on merits. Retrospective applicability of the said Notification and Public Notice - Held that - the DFIA would be governed by the FTP in force on the date on which DFIA was issued. Any subsequent amendment in the FTP or HBP cannot govern the entitlement under the DFIA as it existed as per the FTP on the date of issuance of DFIA. Therefore, discharge of export obligation, transferability and utilization of DFIA would necessarily be governed by the policy in force is vague on the date of issuance of DFIA. The benefit of DFIA ought to have been given its actual meaning to include materials that are required in order to produce the export product, in essence, the duty free import under DFIA cannot be confirmed to only such goods which are actually used or physically incorporated in the production of the export product, but would also include goods which, though not used in the production of the export goods, are required in order to produce the same. Once the DFIA licence, when issued, permitted duty free import of any Insecticides with Technical characteristics, specifications and quality as per Schedule of Insecticide Act, 1968, no further requirement can be insisted upon on this score based on any subsequent development or amendment or instructions to deny duty free import of any of such Insecticides mentioned in the said Schedule to Insecticides Act, 1968. Duty Free import under the said DFIA of any of the Insecticides mentioned in the decision of the Norms Committee, recognized as required for cotton farming, if in Schedule of Insecticide Act, 1968 shall necessarily permitted under the DFIA, subject to the quantity restriction mentioned in the Licence as per SION J-373. The Shipping Bills filed while making exports were to be seen at the time of export in the light of the details specified in the DFIA. It would not wholly erroneous and incorrect to insist on specifications of Pesticides used by farmers after the exports. Despite absence of any power under Section 5 of the FTDR Act, 1992 for any retrospective amendment, several such amendments/instructions are being issued by respondent no.2 and are being arbitrarily applied in a retrospective manner, leading to unwarranted litigation and making an adverse impact on growth of export business - I am therefore inclined to request the learned Attorney General of India to look in the aspect and to suitably advise the respondents for remedial action as soon as possible - petition allowed by way of remand.
Issues Involved:
1. Validity and utilization of Duty Free Import Authorization (DFIA) 2. Delay and latches in filing the petition 3. Applicability of Policy Circular No.72 and Norms Committee Decision 4. Retrospective applicability of amendments and instructions 5. Objections regarding non-joinder of Customs Authorities and alternate remedy Detailed Analysis: 1. Validity and Utilization of DFIA: The petitioner, a proprietorship firm, sought the revalidation of DFIA No. 0310663555 issued on 04.11.2011, which permitted duty-free import of 'Pesticides' under Standard Input Output Norm (SION) J-373. The petitioner claimed that due to various impediments caused by the respondent authorities, the DFIA could not be utilized during its validity period. The respondents contended that the petition was filed after a gross delay and that no adverse action was taken against the DFIA during its validity period. The court found that the DFIA was issued as per the policy in force on the date of issuance and that subsequent amendments could not affect the rights under the DFIA already issued. 2. Delay and Latches in Filing the Petition: The respondents argued that the petition should be dismissed due to the delay in filing. The court, however, noted that the petitioner was prevented from utilizing the DFIA due to the respondents' actions and that the delay was justified. The court rejected the objection of delay and latches, stating that the petitioner could not be blamed for not utilizing the DFIA within the validity period due to the impediments caused by the respondents. 3. Applicability of Policy Circular No.72 and Norms Committee Decision: The petitioner relied on Policy Circular No.72 dated 23.04.2009 and the Norms Committee Decision dated 31.05.2012, which allowed flexibility in importing alternative inputs under the DFIA scheme. The respondents contended that the Policy Circular was not applicable to insecticides/pesticides and that the Norms Committee Decision was only recommendatory. The court found that the Norms Committee Decision was not challenged or recalled and that the products mentioned therein were recognized as 'required for cotton farming.' The court held that the DFIA permitted duty-free import of any insecticides with technical characteristics as per the Schedule of the Insecticide Act, 1968. 4. Retrospective Applicability of Amendments and Instructions: The court observed that amendments and instructions issued after the DFIA's issuance could not be applied retrospectively to disturb the rights under the DFIA. The court referred to previous judgments, including the Division Bench's decision in Pushpanjali Floriculture Pvt. Ltd. vs. Union of India, which struck down retrospective amendments. The court held that the DFIA would be governed by the policy in force on the date of its issuance and that any subsequent amendments could not affect the entitlement under the DFIA. 5. Objections Regarding Non-Joinder of Customs Authorities and Alternate Remedy: The respondents argued that the petition was not maintainable due to the non-joinder of Customs Authorities and the availability of alternate remedies. The court rejected these objections, stating that no relief was sought against the Customs Authorities and that the petitioner had no alternate efficacious remedy except the writ jurisdiction. The court directed the revalidation of the DFIA and permitted the import of insecticides required for cotton farming as per the Norms Committee Decision. Conclusion: The court revalidated the DFIA for 12 months and directed the Regional Authority to make the necessary endorsement. The court also permitted the import of insecticides mentioned in the Norms Committee Decision, subject to the quantity restriction mentioned in the DFIA. The court emphasized the need for remedial action to prevent retrospective amendments and unwarranted litigation, requesting the learned Attorney General of India to advise the respondents accordingly.
|
