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TMI Blog2008 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench :- (i) Whether DGFT has powers to amend the licence including the revalidation (obviously referring of a situation where validity is expired) and whether amendment will be retrospective in nature? (ii) Whether as to the amendment carried out by the DGFT, whether right or wrong can be the subject matter of the scrutiny and challenge by the customs authorities? 2. Heard both sides at length and perused the records. The first question, which has been referred to us is whether the DGFT has powers to amend the licence and whether said amendment can be retrospective in nature or not. We find that the Central Government has framed Rules as Foreign Trade (Regulation) Rules, 1993. In the said rules, Rule 8 is as under :- "Rule 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as powers to amend the licences retrospectively. The Id. Advocate appearing on behalf of the appellants relied upon the judgment and order of the Tribunal in the case of Rama News Prints and Paper Ltd. v. CC - 2000 (122) E.L.T. 473 (Tri), wherein the Tribunal in para 7 has held as under :- "7. Whatever be the speculations on these aspects or the conclusion of the licensing authority, our decision cannot be guiding by it. The fact remains that the licence was amended by the authority competent to do so validating import of the goods made, and send by the Directorate of Revenue Intelligence. It is not possible for us to accept either on principles of law or in terms of the Policy that this amendment will not operate retrospectively. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has framed the rules called Foreign Trade (Regulation) Rules, 1993. Rule 8 is material for the purposes of this case. It provides as under: - Rule 8: AMENDMENT OF LICENCE: The licencing authority may on its own motion or on an application by the licensee, amend any licence in such manner as may be necessary or to rectify any error or omission in the licence." 11. On a perusal of the provisions of the Act and the rules, we do not find any power with the licensing authority to retrospectively amend a licence. Mr. Gumber, learned counsel for the respondents has stated before us that the authority has been amending the licence retrospectively "in routine". The counsel has conceded that there is no provision which may specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can challenge the amendment carried out by the DGFF whether right or wrong, we find that the issue is no more res integra. The Hon'ble Supreme Court in the case of Titan Medical Systems Pot. Ltd. v. CC, New Delhi as reported at 2003 (151) E.L.T. 254 (S.C.) has held as under "13. As regards the contention that the appellants were not entitled to the benefit of the exemption notification as they had misrepresented to the licensing authority, it was fairly admitted that there was no requirement, for issuance of a licence, that an applicant set out the quantity or value of the indigenous components which would be used in the manufacture. Undoubtedly, while applying for a licence, the appellants set out the components they would use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of the export product, it is not open to the Customs authorities to go behind the licence and deny duty free clearance of the goods. The exemption Notification No. 116/1988, dated 30th March, 1988 specifically states that the materials that are required to be imported for the purpose of manufacture of resultant products shall include such items as are imported into India against the advance licence for subsequent exportation. In the instant case, the licence specifically states that the petitioner is entitled to import die steel as a material required for the manufacture of resultant products. The Apex Court in the case of Titan Medical Systems Put. Ltd. v. Collector of Customs reported in 2003 (151) E.L.T. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue that has to be determined by the DGFT and not the Customs authorities. It is now well settled that until the licenses are cancelled by the licensing authority they are deemed to be valid. The Hon'ble Supreme Court in the case of Titan Medical Systems Pvt. Ltd. v. Collector of Customs reported in 2003 (151) E.L.T. 254 (SC) has held that once an advance licence is issued and not questioned by the licensing authority, the Customs authorities cannot refuse exemption on an allegations that there was any misrepresentation. If there was any misrepresentation, it was for the licensing authority to take steps in that behalf. In the present case, the licensing authority sought to cancel the licenses, but in appeal, the order was set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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