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TMI Blog2015 (8) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... re operating the telecom services. The Petitioners have also obtained a license to import the capital goods at concessional rates of duty subject to the fulfillment of an Export Obligation (EO) under the Export Promotion Capital Goods Scheme (EPCG) of the Foreign Trade Policy (FTP). These licenses have been issued to the Petitioners by Respondent No. 4 to this Writ Petition. Respondents Nos. 1 to 3 are exercising powers under the Foreign Trade (Development & Regulation) Act, 1992. 4. The Writ Petition is filed by relying upon the Foreign Trade Policy. That, according to the Petitioners, gives impetus to the export business in India. That is to generate earnings in Foreign Exchange. The policy evolved over passage of time gives fillip and encourages the exports. The Petitioners point out that for the purpose of sustained export growth they are required to import high quality of machinery and technology. That is why the Export Promotion Capital Goods Scheme was formulated under which the import of capital goods, for pre-production and post-production of capital goods and/or export services at concessional rates of duty, subject to the Export Obligation equivalent to eight times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 5 considered the issue once again in the meeting held on 13 July, 2012. Since the request of the Petitioners as contained in the written application came to be rejected once again on 13 July, 2012, the present Writ Petitions have been filed. 6. Mr. Dwarkadas, learned Senior Counsel appearing for the Petitioners submitted that the Petitioners are entitled to the benefits and in terms of para 9.28 of the Foreign Trade Policy. He relied upon the order of this Court to submit that this Court had expressly directed that the request of the Petitioners should be considered in terms of the Policy and a decision taken consistent with the object and purpose sought to be achieved by the Foreign Trade (Development & Regulation) Act, 1992. Mr. Dwarkadas would submit that the definition of "Group Company" and as set out in para 9.28 would denote as to how the authorities have understood that two or more enterprises directly or indirectly exercising voting right and to the extent or percentage indicated or appointing more than fifty percent of members of Board of Directors in the other enterprise could be termed as "Group Company". Therefore, this concept and as defined ought to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies upon the order passed and to contend that the requirement as per para 9.28(a) of the Foreign Trade Policy is that one enterprise should be in a position to exercise 26% or more of voting rights in other enterprise. In the present case, the other enterprise is Tata Services Ltd. and that is not in a position to exercise 26% or more of the voting rights in Tata Teleservices (Maharashtra) Ltd., either directly or indirectly. The criteria is not fulfilled if Tata Services Ltd, holding company, is not in a position to exercise 26% or more of voting rights in Tata Teleservices (Maharashtra) Ltd. In these circumstances, it is submitted that the affidavit-in-reply filed by the Respondents amply clarifies the position and factually. Once a particular interpretation of the Policy has been placed by those in-charge of implementing it, then, merely because another view is possible, this Court should not interfere in such matters in exercise of its writ jurisdiction. That is the main plank or essential contention of the learned Addl. Solicitor General. He submits that the interpretation placed by the Policy Interpretation Committee is a possible one, in the given facts and circumstances, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in a position to exercise 26% or more of voting rights in Tata Teleservices (Maharashtra) Ltd. either directly or indirectly It is in fact M/s. Tata Sons Ltd., the holding company, who is in a position to exercise 265 or more of voting rights in Tata Teleservices (Maharashtra) Ltd. The Committee, therefore, could not accept the claim of the applicant that Tata Consultancy Services is indirectly in a position to exercise 26% or more of voting rights in Tata Teleservices (Maharashtra) Ltd. within the meaning of Para 9.28(a) of FTP." 13. Upon perusal of this paragraph it is apparent that the Policy Interpretation Committee is of the opinion that requirement as per para 9.28(a) of the Foreign Trade Policy is that one enterprise should be in a position to exercise 26% or more voting rights in other enterprise. In this case, other enterprise is Tata Consultancy Services Ltd., which is not in a position to exercise 26% or more voting rights in Tata Teleservices (Maharashtra) Ltd. either directly or indirectly. 14. In that regard one must peruse the chart that has been relied upon in the case of M/s. Tinplate India Ltd. The shareholding pattern as of 31 March, 2008 is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in para 9.28 of the Foreign Trade Policy. The requirement is not of a direct control. The requirement is fulfilled by indirect control as well. If a group company means two or more enterprises and which are indirectly in a position to exercise 26% or more voting rights in other enterprise, the requirement is fulfilled. The stand taken before us by the Respondents and reiterated by the learned Addl. Solicitor General is that neither of the two firms namely Tata Teleservices (Maharashtra) Ltd. and Tata Consultancy Services are in a position to exercise 26% or more voting rights in the other enterprise or in a position to appoint more than 50% of the members of the Board of Directors either directly or indirectly. We do not see how such a stand can be taken and in the teeth of the language of para 9.28. The Policy Interpretation Committee should place an interpretation consistent with the policy and not contrary to it. If the Foreign Trade Policy is formulated in terms of the powers conferred in the competent authority by the Foreign Trade (Development & Regulation) Act, 1992 and in this case it is formulated so as to promote and encourage the export, then we expected the Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Tata Consultancy Services are covered by the definition of "Group Company". That is how they relied upon the chart. None disputed this factual position or that the Tata companies are not a group. However, despite this Court emphasizing and repeatedly that this writ petitioner's case is based on indirect control, there does not seem to be any attempt by the Policy Interpretation Committee to appreciate and abide by this direction. The earlier order of the Division Bench is based on the finding and conclusion that the Policy Interpretation Committee has neither interpreted the policy provisions nor did it consider the claim of the Petitioners that they indirectly fulfill the first condition set out in para 9.28 of the Foreign Trade Policy. We do not see how in the teeth of such clear and unambiguous direction of this Court the Policy Interpretation Committee had committed the same mistake. It failed to abide by this Court's direction in its Letter and Spirit. It was the indirect control and emphasized before this Court by the writ petitioner and request based thereon that was required to be examined and scrutinized by the Policy Interpretation Committee. That having not been done ..... X X X X Extracts X X X X X X X X Extracts X X X X
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