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TMI Blog2014 (2) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... was by the DGFT) to exercise the power of review. The declaration in paragraph 7 of ANF-8, that Simplex will return any excess duty refunded, cannot eclipse the narrow statutory power to review provided under the Act. - the impugned order and subsequent recovery proceedings exceeds the authority granted by law under the FTDR Act. Recovery cannot be made. Petition allowed - decided in favor of petitioner. - W.P. (C) 4455/2013 CM APPL.10299/2013, 836/2014 - - - Dated:- 26-2-2014 - MR. S. RAVINDRA BHAT AND MR. R.V. EASWAR JJ. Petitioner Through: Mr. Sujit Ghosh with Ms. Kanupriya Bhargava, Advocates. Respondents Through: Mr. Sumeet Pushkarna, Advocate. MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) 1. This writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 12,26,55,979, which was released on 29th March, 2011. 3. The first Respondent is the Union of India, through the Ministry of Commerce; the second Respondent is the Director General of Foreign Trade ( DGFT ); the third Respondent is the Joint Director General of Foreign Trade ( Joint DGFT ), and the fourth Respondent is the Deputy Director General of Foreign Trade ( Deputy DGFT ). On 30th March, 2012, the Joint DGFT passed an order seeking the recovery of the TED earlier disbursed to Simplex. Simplex appealed to the Deputy DGFT, which was dismissed on 2nd April, 2013. Simplex today impugns these orders. 4. The background of the impugned orders becomes clear from the meeting of the Policy Interpretation Committee ( PIC ) un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice itself notes that the TED was lawfully refunded to Simplex, and thus, any subsequent change in interpretation cannot upset settled legal rights that accrue in favour of Simplex under the policy. It is argued that such action is arbitrary, in that settled legal rights are ignored, by a unilateral change in interpretation that was not known to Simplex, nor could have been known in the circumstances. Further, it is argued that the power to review an order under the policy is granted to the DGFT under Section 16 of the Act, which in this case was impermissibly exercised by the Deputy DGFT. 6. At this juncture, the attention of the Court is also drawn to the decision of the Gujarat High Court in Alstom India Limited v. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to the Respondent No.1 to make provisions relating to imports and exports and the Respondent No.1 under Section 5 of the FTDR Act can formulate and announce the foreign trade policy. It further appears from Section 6(3) of the FTDR Act that of the powers conferred upon the Respondent No.1 under the FTDR Act, except those provided in Sections 3,5,15,16 and 19, all others can be delegated to the Respondent No.2 by order published in the Official Gazette. We find that the Respondent No.2 through Para 8.3.6 of the HOP has sought to incorporate the provisions of Duty Drawback Rules to deemed exports mutatis mutandis which is not permissible in view of the fact that no power has been granted to the DGFT under the FTDR Act to legislate either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Section 94 of the Finance Act, 1994 although not authorized under the FTDR Act. We are in agreement with Mr. Ghosh, the learned advocate for the petitioner, that the conferment of such power to the Respondent No.2 to adopt the duty drawback rules without any power to legislate either expressly or otherwise would amount to permitting the levy or collection of tax without authority of law in violation of Article 265 of the Constitution of India. XXX XXX XXX 31. On going through the provisions of the FTDR Act, we find that those do not grant power to the Respondent No.2 or its subordinates to re-determine or re-verify the deemed export benefits if such benefits have been approved or granted as per the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of any decision or order made by the Director General, or the Director General in the case of any decision or order made by any officer subordinate to him, to act on its own motion or otherwise, by calling for and examining the records of any proceeding for the purpose of satisfying itself or himself, as the case may be, as to the correctness, legality or propriety of such decision or order and make such orders thereon as may be deemed fit. The proviso. however, says that no decision or order shall be varied under section 16 so as to prejudicially affect any person unless such person has, within a period of two years from the date of such decision or order, received a notice to show cause why such decision or order shall not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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