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TMI Blog2015 (9) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and counter affidavits have been filed in other two petitions. Moreover, enough opportunity has already been given for filing the counter affidavit and these matters have been listed today for hearing, from 24th September, 2015, on which date no such request was made. 4. The counsels for the respondents Directorate General of Foreign Trade (DGFT) in W.P.(C) Nos.5317/2015 & 5288/2015 state that the challenge in these petitions is to a Notification and thus the matter is to be considered by the Division Bench of this Court. 5. The senior counsel for the petitioner in W.P.(C) No.1345/2015 states that the challenge is not to any Notification to require consideration by the Division Bench of this Court. The counsels for the petitioners in W.P.(C) Nos.5317/2015 & 5288/2015 state that though the prayer paragraphs in their petitions may have been differently worded but the challenge made by them and pressed by them also before this Court is not to any Notification and even if reads so, be treated as the challenge as made in W.P.(C) No.1345/2015. 6. In this view of the matter, the counsels have been heard. I may in this regard also notice that the Registry of this Court vide Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous metal in any form including plain and studded jewellery and other precious and semi-precious stones. (vii) Ores and concentrates of all types and in all formations. (viii) Cereals of all types. (ix) Sugar of all types and all forms. (x) Crude / petr5oleum oil and crude / primary and base products of all types and all formulations. (xi) Export of milk and milk products. (xii) Export performance made by one exporter on behalf of other exporter. (xiii) Supplies made to SEZ units. (xiv) Items, export of which requires an export authorisation (except SCOMET), will not be considered. (xv) Export of Meat and Meat Products. (xvi) Exports of Singapore, UAE and Hong Kong. Special Provision (e) The scheme is region specific and will cover exports to USA, Europe and Asian countries only. Disclaimer provisions of para 3.17.10 (b) of FTP shall not be admissible. This benefit will be over and above any benefit being claimed by the exporter under any of the Chapter 3 Schemes, therefore, provisions of para 3.17.8 of FTP 2009-14 will not be invoked for such benefit. Utilisation of Scrip (f) The duty credit scrip will be freely transferable. Such scrips shall also be eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o higher levels of benefits under the scheme." and directing that entitlement under the scheme be computed as under: "IEIS for the last quarter of 2012-13: Benefit of Incremental Export Incentivisation Scheme for the last quarter of 2012-13 will be limited to 25% growth or Incremental growth of Rs. 10 crores in value, whichever is less. RAs should recover excess claim over Rs. 20 lakhs, if sanctioned by them. IEIS for the whole year of 2013-14: Benefit of Incremental Export Incentivisation Scheme for the year 2013-14 will be limited to a scrip of a value not exceeding Rs. 1 Crore per IFC. RAs should recover excess claim over Rs. 1 crore, if sanctioned by them." 9. It is the contention of the senior counsel for the petitioner in W.P.(C) No.1345/2015 that the subsequent Notification dated 25th September, 2013 cannot have any retrospective effect as is sought to be given by the respondents including by issuing the clarification aforesaid. It is contended that the petitioner made exports from 1st January, 2013 to 31st January, 2013 under the earlier Notification dated 28th December, 2012 and the incentive which has accrued to the petitioner under the said earlier Notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier Notification dated 28th December, 2012 remain unaffected by the subsequent Notification dated 25th September, 2013. 14. The counsel for the respondents in W.P.(C) No.5288/2015 has drawn attention to the judgment of the Division Bench of Gujarat High Court in Adani Exports Limited Vs. Union of India 2004 LawSuit(Gujarat) 445 to contend that it was held therein that if a scheme is being abused or misused, the Government can always exercise power to amend the same. It is contended that the incentive introduced vide the Notification dated 28th December, 2012 was also being abused / misused by incrementing the exports to own companies without any actual increase in exports, merely to claim the incentive. It is further contended that the increase in exports across the board was of 5% only, however to claim incentive increase in exports was claimed to be of more than 20% and which is clear evidence of abuse. 15. The counsel for the respondent DGFT in W.P.(C) No.5317/2015 has also contended that if the petitioners are aggrieved from non-grant of the incentive claimed, the remedy of appeal under Section 9(5) read with Section 15 of the Act is available. However, on enquiry, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy circular of the DGFT having the effect of excluding the products exported by the petitioners therein from the definition of technical textiles, thereby rendering the petitioners therein ineligible for claiming the incentive available under the Focus Product Scheme. It was inter alia the contention of the petitioners therein that the impugned circular sought to take away the benefits that had already been availed and utilized by the petitioners and which were, pursuant to the impugned circular, sought to be recovered back from the petitioners. This Court held, (i) that though DGFT is entitled to clarify a doubt as to the classification but the entry in question was unambiguous and the purpose of the impugned circular was not clarificatory but to curtail the number of products which would be eligible for the export incentive; (ii) that the power granted to DGFT for clarifying any question and doubts with regard to the entries cannot be used to provide a definition where the entry itself is not ambiguous; (iii) that the impugned circular therefore brought about the substantive change as it restricted the scope of the Focus Product Scheme in respect to technical textiles as env ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay become so entitled to 25% growth or incremental growth of Rs. 10 crores in value, whichever is less. Introduction of an outer limit to the benefit, to which a person may become entitled to, would definitely qualify as an amendment and not as a clarification. The earlier Notification dated 28th December, 2012 entitled an IEC holder to duty credit scrip @ 2% on the incremental growth and which 2% could be of any value, without any limitation whatsoever. However, vide subsequent Notification dated 25th September, 2013, the said duty credit scrip to which an IEC holder could become entitled to under the earlier Notification dated 28th December, 2012 was limited to a maximum of 25% growth or Rs. 10 crores whichever is less. Introduction of a maximum limit is by way of an amendment and can by no stretch of imagination be treated as a clarification. There was no ambiguity in the earlier Notification dated 28th December, 2012, as to the maximum amount to which an IEC holder may become entitled thereunder, to require any clarification. Moreover, the Notification dated 25th September, 2013 itself is titled as an „amendment‟ and describes the effect thereof also as „amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Notification dated 28th December, 2012 in excess of the limits prescribed by the Notification dated 25th September, 2013 have been barred, not by the Notification dated 25th September, 2013, but by the clarification dated 23rd September, 2014. Supreme Court in Atul Commodities Private Limited supra relied upon by the counsel for the respondents in W.P.(C) No.1345/2015 held (a) that there is a difference between amendment and clarification; (b) that under the scheme of the FTDR Act, one finds a clear demarcation between an amendatory provision and a clarificatory provision; (c) that the power to amend FTP is exclusively vested in the Central Government whereas the power to clarify is vested in DGFT; (d) that a change of categorisation can be done only by an amendment under Section 5 of the Act; (e) it is not open to the DGFT to vide a circular, change categorisation of items; (f) that under the FTP, DGFT is empowered to interpret the policy. Thus, if it were to be said that the bar / prohibition against benefits accrued under Notification dated 28th December, 2012 in excess of the limits prescribed in Notification dated 25th September, 2013 is by the clarification dated 23r ..... 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