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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 ..... rson 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 ₹ 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 "amendment" of the earlier Notification dated 28th December, 2012. The petitioners are held entitled to what they may have been entitled to under the Notification dated 28th Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard. I may in this regard also notice that the Registry of this Court vide Notification dated 31st July, 2013 has also clarified that though writ petitions challenging constitutional validity of any Act, Rules or Regulations are to be listed before the Division Bench dealing with that subject but challenge to a policy, scheme or guideline is not to be treated as a challenge to the vires of the Act, Rules or Regulations. 7. The senior counsel for the petitioner in W.P.(C) No.1345/2015 has drawn attention to the Notification No.27(RE-2012)/2009-2014 dated 28th December, 2012 of the Ministry of Commerce Industry, Govt. of India issued in exercise of powers under Section 5 of the Foreign Trade (Development and Regulation) (FTDR) Act, 1992 read with para 2.1 of Foreign Trade Policy (FTP), 2009-2014 making amendments to the FTP 2009-2014 with immediate effect. By the said amendment, a new paragraph was added at the end of para 3.14.3 of FTP 2009-2014 as para 3.14.4 and which para 3.14.4 is as under: 3.14.4 Incremental Exports Incentivisation Scheme Objective (a) The objective of the Scheme is to incentivize incremental exports. Entitlement (b) An IEC holder would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit. Utilisation of Scrip (f) The duty credit scrip will be freely transferable. Such scrips shall also be eligible for domestic sourcing as per para 3.17.5 of FTP 2009-2014:. The Notification dated 28th December, 2012 also adds the following at the end of para 3.17.8 of FTP 2009-2014: Benefit under para 3.14.4 of FTP will not be covered under this para And under the heading Effect of this Notification provides as under: Effect of this Notification: The Scheme to incentivize incremental exports is being notified. 8. It is the case of the petitioner in W.P.(C) No.1345/2015 that it, on 26th July, 2013, made a claim under the aforesaid amendment, of the value of ₹ 10,95,83,585.60 paise and the necessary incentive scrips were issued to it on 19th March, 2014 but the same were lost by it necessitating it to apply to the respondents for issuance of duplicate scrip and which have been denied to the petitioner. The duplicate scrips have been denied to the petitioner because of a Notification No.44(RE-2013)/2009-2014 dated 25th September, 2013 of the Govt. of India, again in exercise of powers under Section 5 of the FTDR Act, further amending Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 under the earlier Notification dated 28th December, 2012 and the incentive which has accrued to the petitioner under the said earlier Notification dated 28th December, 2012 cannot be taken away by the subsequent Notification dated 25th September, 2013 and clarification issued thereunder. Reliance in this regard is placed on the judgment dated 8th December, 2014 of a learned Single Judge of this Court in W.P.(C) No.6387/2012 titled Malik Tanning Industries Vs. Union of India. 10. The only difference in facts in the other two petitions i.e. W.P.(C) Nos.5317/2015 5288/2015 is that the petitioners in those petitions were not issued any scrips as had been issued to the petitioner in W.P.(C) No.1345/2015 for the amount to which the petitioners claim to be entitled to but have been issued scrips for a lesser value in accordance with the subsequent Notification dated 25th September, 2013. 11. The counsels for the respondents in W.P.(C) Nos.5317/2015 5288/2015 informs that an appeal has been preferred to the Division Bench against the judgment in Malik Tanning Industries supra and which was listed today and of which notice has been issued. 12. The counsels for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners 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, whether not the Appellate Authority would not be bound by the Clarifications issued and thus what purpose the appeal would serve, the counsel has fairly not chosen to controvert. 16. The counsel for the respondents in W.P.(C) No.1345/2015 contends that the Central Government is empowered to amend the policy and the DGFT is empowered to apply and interpret the policy and if any doubt or question arises in respect of the interpretation of any provision of FTP or in the matter of classification of any item, the said doubt is to be referred to the DGFT whose decision shall be final and binding. Reliance in this regard is placed on Atul Commodities Private Limited Vs. Commissioner of Customs, Cochin 9 (2009) 5 SCC 46. 17. I have considered the aforesaid contentions. 18. I may at the outset state that in view of the Notification dated 31st July, 2013 supra of the Registrar of this Court clarifying that challenge to a policy is not to be treated as a challenge to the vires of the Act, Rules and Regulations required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us; (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 envisioned under the FTP; (iv) that as per Section 5 of the FTDR Act, a policy cannot be made with retrospective effect; reliance in this regard was placed on Union of India Vs. Asian Food Industries (2006) 13 SCC 542; (v) that the power exercised by the Central Government is a power delegated by the Legislation and it is well settled that in the absence of an express provision enabling a delegate to make delegated Legislation with retrospective effect, no such power can be inferred; (vi) that Section 5 of the FTDR Act does not empower the Central Government to frame policy with retrospective effect; (vii) that thus the schemes framed under the FTP cannot be altered or amended with retrospective effect; reliance was also placed on Mahabir Vegetables Oils (P) Ltd. Vs. State of Haryana (2006) 3 SCC 620. 20. The Division Bench of this Court in Agri Trade India Services Pvt. Ltd. supra was concerned with the challenge to a Notification dated 4th July, 2006 of the Central Government purporting to amend the earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder, to require any clarification. Moreover, the Notification dated 25th September, 2013 itself is titled as an amendment‟ and describes the effect thereof also as amendment‟ of the earlier Notification dated 28th December, 2012. 23. As far as amendment is concerned, the view of the Division Bench of this Court in Agri Trade India Services Pvt. Ltd. supra, binding on the undersigned, is that the same cannot be retrospective. The amendment brought by the subsequent Notification dated 25th September, 2013 limiting the benefit, earlier unlimited, to 25% growth or ₹ 10 crores whichever is less, for the last quarter of 2012-2013 i.e. 1st January, 2013 to 31st March, 2013 and with which we are concerned, would definitely be retrospective. It has thus but to be held that the said amendment of 25th September, 2013 cannot take away the benefit which has already accrued due as on 31st March, 2013. 24. Supreme Court, in Shiv Ganga Papers Pvt. Ltd. Vs. Union Territories of Daman Deu MANU/SC/0392/2014, held that an explanation should only explain and clarify and if it accepts, excludes or restricts, it is not an explanation but a proviso and should be considered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 23rd September, 2014, then the same is clearly beyond the powers of the DGFT. 26. That brings me to the judgment of the Division Bench of the High Court in Adani Exports Limited supra relied upon by the counsel for the respondents in W.P.(C) No.5288/2015. A close reading of the same shows the same to be not laying down that an incentive introduced and accrued can be taken away retrospectively, if found to have accrued by abuse/misuse of the policy/scheme. I am afraid the counsel is misreading the judgment. The Division bench in Para 21 of the judgment has clearly observed that the amendments to the Scheme under consideration in that case were not having retrospective effect and were at the most retroactive . It is further mentioned in the said paragraph of the judgment hence none of the principles against retrospectivity will apply in the instant case. Rather, the contention of the petitioners therein was that amendments were taking away vested rights . A vested right is differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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