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TMI Blog2010 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. P.S. Jetly for Respondents. ORAL JUDGMENT : (Per R.M. Savant,J.) Rule in all the petitions made returnable forthwith and heard with the consent of the parties. 2. By way of the above writ petitions, filed under Article 226 of the Constitution of India, Petitioners inter alia lay a challenge to the policy circular dated 28.2.2006 issued by Respondent No. 3 by way of a clarification to "Vishesh Krushi Upaj Yojana" scheme (hereinafter referred to "VKUY scheme). Petitioner in W.P. No. 1665 of 2006 also challenge the rejection letter issued to them rejecting their application for the benefit of the said scheme. In so far as the said Writ Petition No. 1665 of 2006 is concerned, the rejection letter is dated 27.3.2006 whereas i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being a three Star export house bearing registration No. 014115 by the Joint Director General of Foreign Trade which was valid upto 31st March, 2009. 5. From the point of view of the present petition, it would be relevant to note that the Petitioners effected exports of Menthol Crystals being a value added product of Mentha arvensis) between the period April, 2004 and March, 2005. The said product Mentha Avrvensis is listed in the Appendix 37A. It is the case of the Petitioners that the Mentha Arvensis is the plant and is never exported as a plant and is exported in the form of Oil. The oil is extracted by the farmers according to Petitioners, is not commercially viable to export. Such oil is purchased by the Petitioners and subjecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for vishesh krishi upaj Yojana is rejected in terms of policy circular No. 51/2004-9 dt.28.2.2006. As per policy circular No. 4 dated 27.4.2005 appendix 37/A the item is covered under minor forest product i.e. Mentha whereas the item shown in the shipping bills as Menthol BP/USP. Your case stands closed." 8. As can be seen from the said order, the application of the petitioners was solely rejected on the ground of the said policy circular dated 28.2.2006 as according to respondents, the item covered under Appendix 37A under minor forest produce is Menthol BP/USP. 9. On behalf of Respondents, an affidavit in reply has been filed by one Mr. Vijay N. Shewale, Joint Director General of Foreign Trade dealing with the claims and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 3.8.2. would be rendered nugatory. Such interpretation would also lead to absurdity as according to the learned counsel, Bramhi and Ashoka trees cannot be exported but their value added products one of which is Brahmi Oil is exported. Such interpretation according to the learned counsel would also defeat the very object of the scheme. The learned senior counsel further submitted that the circular cannot have an effect of amending the policy which can be amended only as per the procedure prescribed under Section 5 of the Foreign Trade Development and Regulation Act, 1992. The learned senior counsel further submitted that the circular is only an administrative instruction or guideline and being contrary to the parent scheme cannot prevail o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass orders on their application seeking benefit of the said VKUY scheme. Having not done so, in our view, the said action of the respondents suffers from an infirmity and is therefore, vitiated and is accordingly required to be set aside. The learned counsel appearing for the Respondents fairly concedes to the said position. 13. Another aspect to be considered is that the Petitioners have on the basis of the representation made under the scheme, have acted pursuant to it and when the Petitioners sought to seek benefit of the said scheme, the applications of the Petitioners have been rejected on the basis of circular dated 28.2.2006. Though we find merit in the submission advanced on behalf of the Petitioners that the scheme cannot be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant order. However, in so far as the challenge to the show cause notices is concerned, the said challenge of the Petitioners would have to be kept in abeyance and the Petitioners in the said petition would be entitled to revive the said challenge depending upon the outcome of the hearing before the Director General of Foreign Trade in respect of the applicability of the said Circular dated 28.2.2006. 15. We accordingly set aside the impugned orders passed in Writ Petition No. 1665 of 2006 and Writ Petition No. 2221 of 2007 and issue the following directions in all the petitions : (1) The Director General of Foreign Trade shall hear the Petitioners in all the above petitions on the applicability of the circular dated 28.2.2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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