2015 (9) TMI 564 - HC - Customs

Entitlement to the Duty Credit scrip under the Served From India Scheme - Denial on the ground that Petitioner is promoting Thyssenkrupp brand which is not an Indian brand and that Petitioner is not an Indian service provider - Held that - persons providing a service from India to any other country, from India to service consumer of any other country in India, supply of a service from India through commercial or physical presence in territory of any other country, supply of a service in India relating to exports paid in free foreign exchange or in Indian rupees as having being paid for in free foreign exchange by RBI are all referred to. It is to promote a unique Served from India brand instantly recognized and respected world over that the definition has been worded accordingly. If the main object and purpose sought to be achieved, on which emphasis is placed is noted, then, only as a corollary or analogy to the main object and to accelerate growth of exports from India, that nationality of the share holders comprising of the Petitioner company has been referred to. That is not held to be determinative for availing benefits of Served from India Scheme. Rather the definition and reading thereof would indicate how it is worded so as to achieve the object. Served from India Scheme is a policy and that is set out in Chapter 3 of Foreign Trade Policy. The application for grant of Duty Credit Scrip has to be made to whom, with what details and the forms which are required to be filled in for evaluation of duty credit Scrip entitlement. Non-entitling remittances and services for SFIS scheme are set out in paragraph 3.6.1. That is how the criteria is evolved and provided for. We are of the opinion that once the object and purpose of the Foreign Trade Act, the relevant paras of the FTP are placed in the forefront and duly noted, then, a Indian Brand projecting a Unique Indian Identity and commanding respect and recognition world over is sought to be created. If that is what is held and concluded, then, that it is a imminently possible and reasonable view. It is only when they fulfill the criteria and the provisions of the nature carved out that they would be entitled to the benefits. It is not possible for us to agree with the view recorded in paragraphs 12 to 16 of the judgment. The learned Judge has construed the expression Indian Service Providers narrowly. He has not construed it in the backdrop of the policy measures and by interpreting them in a holistic manner. The learned Judge, once again, with great respect reads the paragraphs in the policy in isolation. We are not persuaded to agree with the views of the Delhi High Court and the challenge cannot be construed to be arising in the backdrop of section 5 of the Foreign Trade Act. There is no other view and which has been brought to our notice. Petitioner apprehends that recoveries would be effected for the past several years from 2005-06 by forfeiting prior incentives. If anything is recoverable in relation to prior policies and earlier to 2009-14 FTP that is surely something which cannot be taken away by making a adjudication order in 2015. We would therefore, hold that it will not be permissible for the authorities adjudicating the claims or issues arising therefrom to recover from the Petitioner in Writ Petition No.1755 of 2014 and all petitioners the SFIS benefits granted till 2007-08. They are clearly falling within earlier policy framework and to that extent all petitions succeed. - Petition dispose of.

Summary

Issues Involved:
1. Eligibility for Duty Credit Scrip under the Served From India Scheme (SFIS).
2. Interpretation of the term "Indian Service Provider".
3. Applicability of past benefits and recovery of previously granted SFIS benefits.
4. Authority and scope of the Policy Interpretation Committee (PIC).
5. Compliance with judicial precedents and orders.

Issue-wise Detailed Analysis:

1. Eligibility for Duty Credit Scrip under the Served From India Scheme (SFIS):
The Petitioner, a company incorporated in India, challenged the order by the Secretary, Department of Commerce and Industry, which denied the Petitioner entitlement to the Duty Credit Scrip under the SFIS. The Petitioner argued that it had been recognized as an export house and had consistently received SFIS benefits from 2003 to 2012. The denial was based on the grounds that the Petitioner was promoting a non-Indian brand and was not an Indian service provider, as interpreted by the Policy Interpretation Committee (PIC) in its meeting on 27th December 2011.

2. Interpretation of the term "Indian Service Provider":
The Petitioner contended that it had a strong Indian presence, being incorporated in India, employing Indian personnel, and complying with Indian laws. The Petitioner argued that the benefits should be extended to any service provider originating from India and earning foreign exchange, regardless of the nationality of shareholders. The Respondents, however, maintained that the SFIS aimed to promote uniquely Indian brands and that the Petitioner, with foreign shareholders, did not fulfill this criterion.

3. Applicability of past benefits and recovery of previously granted SFIS benefits:
The Petitioner received recovery letters seeking to reclaim benefits granted from 2007 to 2012. The Petitioner argued that such actions were not permissible under the law and that past benefits should not be recoverable, especially given the delay and the fact that the benefits were granted under the previous policy framework.

4. Authority and scope of the Policy Interpretation Committee (PIC):
The Petitioner challenged the PIC's interpretation, arguing that the Secretary should independently assess the policy without being bound by the PIC's views. The Court emphasized that the PIC's role was advisory and that the final decision rested with the Government, which was expected to interpret the policy in a manner consistent with its objectives.

5. Compliance with judicial precedents and orders:
The Court noted that the Secretary failed to refer to the Delhi High Court's judgment in a similar case, which should have been considered. The Court criticized this omission but ultimately upheld the Secretary's order, emphasizing that the policy's objective was to promote uniquely Indian brands and that the Petitioner did not meet this criterion.

Conclusion:
The Court upheld the Secretary's order denying the Petitioner SFIS benefits, agreeing that the policy aimed to promote uniquely Indian brands. However, the Court ruled that benefits granted until 2007-08 could not be recovered, as they fell under the earlier policy framework. The Court emphasized the need for the Government to consider judicial precedents and interpret policies independently. The petitions were partially allowed, with the recovery of benefits for the period after 2007-08 to be determined according to the law.