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TMI Blog2020 (1) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... o benefit exporters, who, through the export, earn valuable foreign exchange. It is precisely for this reason that, minimum free foreign exchange has been stipulated as one of the pre-conditions for being entitled to the benefits of SFIS . It would do complete disservice to the intent to clause 3.6.4.2 of the SFIS , therefore, to restrict the benefit thereof, to entities which fulfill the two conditions stipulated therein, viz. of providing of a service/services listed in Appendix-10 of the FTP and of earning free foreign exchange of at least ₹ 10 lakhs in the preceding financial year, to the benefits of the said Scheme. The decision of the said PIC is, therefore, on the fact of it, unsustainable in law - The PIC, no doubt, was entitled to interpret the policy. Under the guise of such interpretation, however, the PIC had no authority, however, to reword the policy, or import, into the policy, conditions and restrictions which were not to be found therein. What the PIC has effectively done is to dovetail para 3.6.4.1 of the FTP 2004-2009 into para 3.6.4.2 thereof. Such an exercise is totally untenable in law. The claim of the appellant, if accepted, would result to subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions, relating to the SFIS, as contained in the FTP 2004-2009, and in the FTP 2009-2014 (under which no benefits were sought by Respondent No. 1) merit reproduction, thus: FTP 2004-09 3.6.4 SERVED FROM INDIA SCHEME Objective 3.6.4.1 Objective is to accelerate growth in export of services so as to create a powerful and unique Served From India brand, instantly recognized and respected world over. Eligibility 3.6.4.2 All Service Providers, of services listed in Appendix 10 of HBP v1, who have a total free foreign exchange earning of at least ₹ 10 Lakhs in preceding financial year shall qualify for Duty Credit scrip. For Individual Service Providers, minimum would be ₹ 5 Lakhs. Entitlement 3.6.4.3 All Service Providers (except Hotels, Restaurants and other Service Providers in Tourism Sector) shall be entitled Duty Credit scrip equivalent to 10% of free foreign exchange earned during preceding financial year. However services and service providers as listed in Paragraph 3.18.1 of HBP v1 shall not be entitled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful unique served from India brand. Hence the objective of SFIS Scheme to accelerate growth in export of Services from India which creates a powerful and unique served from India brand is not achieved. Hence your case is not covered under any category of para 9.53 of FTP and also does not meet the basic objective for grant of SFIS benefit. 9. The above decision was, admittedly, taken pursuant to deliberations by the Policy Interpretation Committee (PIC), constituted to interpret the provisions of the FTP. One of the issues, on which PIC deliberated, was whether Respondent No.1, being an Indian subsidiary of a foreign country, was entitled to the benefit of SFIS. The minutes of the meeting, which took place, on 27th December, 2011 , read thus: PIC considered the issue pertaining to request for grant of SFIS by the above companies. PIC also referred its earlier decision of 27.1.2009 in the case of M/s. Federal Express Corporation and M/s. UPS Jet Air Express Pvt. Ltd. 2. Para 3.12.1 of the Foreign Trade Policy states the objective of SFIS Scheme as Objective is to accelerate growth in export of services so as to create a powerful and unique Served From Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIS benefits were available to all the petitioners before him i.e. that the said benefits available under the FTP 2004-2009 as well as under the FTP 2009-2014. 15. We are not concerned, in these appeals, with the availability, or otherwise, of SFIS benefits under the FTP 2009-2014, as the case of Respondent No. 1 is limited to the FTP 2004-2009. In fact, the entitlement of Yum Restaurants (I) Pvt. Ltd. to SFIS benefits, under the FTP 2009-2014, forms subject matter of a separate challenge, at the instance of the appellant, with which we need not engage ourselves. 16. Insofar as Respondent No. 1 is concerned, certain capital goods were imported by Respondent No. 1, claiming the benefits of SFIS, on which Customs duty, without availing the said SFIS benefit, was deposited by Respondent No. 1. Subsequently, in view of the judgment, dated 27th January, 2015 supra, of the learned Single Judge, in WP (C) 1663/2012, Respondent No.1 claimed refund of the duty, deposited by it, as the learned Single Judge had held Respondent No. 1 to be entitled to the benefits of the SFIS, under the FTP 2004-2009. 17. As the request of Respondent No. 1, for refund of the duty deposited by it, did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talks that all such service providers, shall qualify for the benefits of the SFIS Scheme. 26. Etymologically, the expression shall denotes a mandate, and the Supreme Court has, in various decisions, held so. Khub Chand v. State of Rajasthan, AIR 1967 SCC 1074; Janki Sugar Mills v. Commissioner of Meerut Divn, (1979) 1 SCC 524; Divisional Level Committee v. Sahu Stone Crushing Industries, (1998) 8 SCC 435; Biswanath Poddar v. Archana Poddar, (2001) 8 SCC 187; Hemalata Gargya v. C.I.T., (2003) 9 SCC 510 Equally numerous, however, are decisions which hold that the expression shall is not, inevitably, to be regarded as mandatory, and the court is required to be guided by the real intention of the Legislature, as it appears by attending to the whole scope of the statute. State of U.P. v. Babu Ram, AIR 1961 SCC 751. It is also well-settled that beneficial fiscal statute sought to be liberally construed, and provisions which confer tax benefits, conditional to obligations to be fulfilled by the beneficiary, should be so construed as to advance the benefit, rather than deny the same, subject, of course, to fulfilment of the requisite obligation. In C. I. T. v. Straw Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein, viz. of providing of a service/services listed in Appendix-10 of the FTP and of earning free foreign exchange of at least ₹ 10 lakhs in the preceding financial year, to the benefits of the said Scheme. 29. The decision of the said PIC is, therefore, on the fact of it, unsustainable in law. 30. The PIC, no doubt, was entitled to interpret the policy. Under the guise of such interpretation, however, the PIC had no authority, however, to reword the policy, or import, into the policy, conditions and restrictions which were not to be found therein. What the PIC has effectively done is to dovetail para 3.6.4.1 of the FTP 2004-2009 into para 3.6.4.2 thereof. Such an exercise is totally untenable in law. If the framers of the FTP intended to subject the entitlement, or the eligibility, to benefits under the SFIS, by the objective thereof, the framers ought to have expressly done so. This, having not been done by the framers of the policy, cannot be done by its interpreter. The interpreter of the law cannot be wiser than the framer thereof. 31. A juxtaposed comparison of para 3.6.4.2 of the FTP 2004-2009, with para 3.12.2 of the FTP 2009-2014, underscores this legal ..... 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