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2015 (2) TMI 737 - HC - CustomsTransferability of license - Duty Free Import Authorization (DFIA) - Exemption of Anti dumping duty- Benefit of duty to transferee of license - Held that - We are unable to agree because para 2A para 2A. With effect from 17th September, 2013, the exemption from safeguard duty and antidumping duty shall not be available in case materials are imported against an authorization that has been made transferable on or after 18th April, 2013 by the Regional Authority. is specific. It is states that with effect from 17th September, 2013 the exemption from Safeguard Duty and Antidumping Duty shall not be available in case the materials are imported against the authorization that has been made transferable on or after 18th April, 2013 by the Regional Authority. Admittedly, the Petitioners have effected the imports after the licence was transferred in September 2013, vide a Bill of Entry No.3504275 dated 10th October, 2013. If the imports have been effected post transferability in favour of the Petitioners which is dated 13th September, 2013, then, para 2A cannot be read down and in the manner suggested by Mr. Sridharan. That would be doing violence to its plain language. That course is not permissible in law. The exemption from Safeguard Duty and Antidumping Duty is not available simply because the materials are imported against the authorization which has been made transferable on or after 18th April, 2013 by the Regional Authority. In these circumstances, the alternate condition also fails. Decided against appellant.
Issues Involved:
1. Retrospective amendment of the Foreign Trade Policy and Customs Notifications. 2. Entitlement to exemption from Antidumping Duty and Safeguard Duty under DFIA. 3. Legality of amendments to the Foreign Trade Policy and Customs Notifications. 4. Interpretation of the Foreign Trade Policy and Customs Notifications. 5. Rights of the transferee under a transferable DFIA. Detailed Analysis: 1. Retrospective Amendment of the Foreign Trade Policy and Customs Notifications: The Petitioners challenged the retrospective amendment of the Foreign Trade Policy and Customs Notifications, arguing that there is no power under section 25 of the Customs Act, 1962, or section 5 of the Foreign Trade (Development and Regulation) Act, 1992, to amend the exemption notification or the Foreign Trade Policy retrospectively. They contended that the subordinate legislation cannot be amended retrospectively unless expressly conferred by the parent legislation. 2. Entitlement to Exemption from Antidumping Duty and Safeguard Duty under DFIA: The Petitioners argued that they purchased a transferable DFIA licence before the amendment and were under the belief that they would get exemption from payment of Safeguard and Antidumping Duty on import of goods. They claimed that the licence was not amended while granting transferability to deny any exemption from Antidumping Duty. The Petitioners relied on the fact that the holder of the licence had fulfilled the export obligations prior to the amendment. 3. Legality of Amendments to the Foreign Trade Policy and Customs Notifications: The Respondents argued that the amendments to the Foreign Trade Policy and Customs Notifications were not retrospective but applicable to all DFIAs where authorization had been made transferable on or after 18th April, 2013. They contended that the Central Government reserved the right to amend the policy in public interest and that the amendments were made in accordance with the powers conferred by section 5 of the Foreign Trade (Development and Regulation) Act, 1992. 4. Interpretation of the Foreign Trade Policy and Customs Notifications: The court analyzed the amendments to the Foreign Trade Policy and Customs Notifications, noting that the exemption from Antidumping Duty and Safeguard Duty would be available on an actual user basis only, i.e., before the endorsement of transferability. The court found that the Petitioners could not claim a vested right merely by virtue of the transferability and that the amendments clarified that exemption from these duties would not be available once the DFIA was made transferable. 5. Rights of the Transferee under a Transferable DFIA: The court held that the Petitioners, as transferees, could not claim exemptions that were available to the original holder of the licence. The court emphasized that the conditions attached to the exemption and the licence must be complied with, and the transferee derives benefits based on the transfer in its favor. The court dismissed the Petitioners' argument that the amendments should be read down to preserve their vested rights. Conclusion: The court dismissed the Writ Petitions, holding that the amendments to the Foreign Trade Policy and Customs Notifications were valid and applicable to the Petitioners. The court found no merit in the Petitioners' claims for exemption from Antidumping Duty and Safeguard Duty under the transferable DFIA, as the amendments clarified that such exemptions were not available once the DFIA was made transferable. The court also rejected the argument that the amendments were retrospective, noting that they were applicable to authorizations made transferable on or after 18th April, 2013.
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