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TMI Blog2020 (6) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... o be undertaken by specific amendment to the Foreign Trade Policy under Section 5 of the Act. Hence also, the public notice No.35/2015-2020 dated 26th September, 2019 (Annexure P-1) is beyond the power, jurisdiction and authority of DGFT - the power exercised by DGFT under paragraph 1.03 of the Foreign Trade Policy 2015-2020 is illegal and the same deserves to be quashed and set aside. The public notice dated 26th September, 2019 issued by respondent No.1 and consequential letters dated 1st November, 2019 are set aside which are Annexure P-2 and Annexure P-3 respectively to the memo of writ petition are directed to be decided by respondent No.1 as early as possible and practicable - petition allowed. - W.P.(C) 12197/2019 And C.M.No.49871/2019 (stay). - - - Dated:- 11-2-2020 - HON BLE THE CHIEF JUSTICE HON BLE MR. JUSTICE C.HARI SHANKAR Petitioner: Mr.Tarun Gulati, Sr.Adv. with Mr.Kishore Kuna, Mr.Pratush Chaudhary, Mr.Vikrant A.Maheshwari, Advs. Respondents: Mr.Anurag Ahluwalia, CGSC with Mr.Abhigyan Siddhant, Mr.Shaurya Jain, Advs. along with Mr.Rakesh Sharma, FDTO, DGFT. JUDGMENT (ORAL) 1. This Writ Petition has been preferred by the Petitioner- M. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ₹ 2716 crores. 7. Thereafter, DGFT, vide the impugned Public Notice dated 26th September 2019, disallowed the issue of Advance Authorization for two export items namely Gold Medallions and Coins or Any Jewellery manufactured by fully mechanized process . 8. In light of the impugned Public Notice, the Petitioner addressed a letter dated 30th September, 2019, to DGFT requesting a refund of the Application money. Vide a letter dated 1st October 2019, DGFT issued a deficiency letter in regard to the aforesaid application dated 18th September, 2019, which stated the Petitioner s application could not be considered in light of the impugned Public Notice. 9. The Petitioner, in its reply dated 10th October 2019 to the aforesaid deficiency letter, disputed the application of the Impugned Public Notice to the Petitioner s Application referring to Para 1.05 of the FTP, wherein it has been so provided that the application would be processed in light of the prevalent rules and procedures. Moreover, it was pointed out that the Application should have been processed within the time limits as provided for in the FTP. Furthermore, in another letter issued on the same date, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgement of Malik Training Industries v Union of India 2015 (32) ELT 508 (Del.) the same. It is submitted that the according to the Para 9.10 of the Handbook of Procedures (HBP) read with the Public Notice dated 8th June 2015 which provides for preferential treatment for Status Holders, the application of the Petitioner should have been processed within one day. However, as per the Counsel for the Petitioner, there was an unjustified unreasonable delay in processing of the Petitioner s Application. 17. It has further, been so contended that by the Petitioner that, since the delay was not attributable to the Petitioner, placing reliance on the case Commissioner vs. M.P.V. and Engg. Industries 2003 (153) E.L.T. 485 (S.C.), the grant of the exemption should relate back to the date when the application was made. Since the Petitioners application were filed before the Impugned Public Notice dated 26th September, 2019, it has been contended that Petitioner s application would not be subject to the impugned Public Notice. 18. Per Contra, it is the contention of the Ld. Counsel for the Respondent that vide the Public Notice, DGFT has only amended the procedure followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty free import of input would be available is provided and the relevant portion reads as under:- 4.32 Items of Export Following items, if exported, would be eligible: (i) Gold jewellery, including partly processed jewellery and articles including medallions and coins (excluding legal tender coins), whether plain or studded, containing gold of 8 carats and above up to a maximum limit of 22 carats; 23. The Schemes, so provided by the Central Government are listed in Para 4.33 wherein under sub para (iv), the Central Government has provided for Advance Authorization for Precious Metals, for which the detailed scheme is provided under Para 4.37 which reads as under:- 4.37 Advance Authorisation for Precious Metals: (a) Advance Authorisation shall be granted on pre-import basis with Actual User condition for duty free (excluding Integrated Tax and Compensation cess leviable under Section 3(7) and 3(9) of Customs Tariff Act)import of: (i) Gold of fineness not less than 0.995 and mountings, sockets, frames and findings of 8 carats and above; (ii) Silver of fineness not less than 0.995 and mountings, sockets, frames and findings containing more than 50% silve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued relating to non-statutory rules, regulations, order and resolutions issued by the Ministries of Government of India (other than the Defence Ministry), and by the Supreme Court of India are published under Part 1 Section 1 of the Gazette of India. On the other hand, notifications issued by the Ministries of Government of India (other than the Defence Ministry) are published under Part II Section 3(ii) of the Gazette of India. On that basis, justification is sought to be given that Notification No. 28/(RE-2003)/2002-2007 dated 28-1-2004, Notification No. 38/(RE-2003)/2002-2007 dated 21-4-2004 were published in the Gazette of India under Part II, Section 3 sub-section (ii), while Public Notice No. 40 dated 28-1-2004 was published in the Gazette of India under Part I Section 1 of the Gazette of India and as such, as both the notifications as well as the public notices are officially gazetted in the Gazette of India. Thus, there is no distinction between the two as the same carry the same impact and effect. xxx xxx xxx 98. From the aforesaid explanation, we take it that the Public Notice dated 28-1-2004 was published in the Gazette of India in accordance with the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to issue Notification No. 31 dated 19-10-2005. 29. It has been held by a Division Bench of this Court in Union of India vs. Indian Exporters Grievance Forum 2013 (290) ELT 481 (Del.) in paragraph 35 and 36 as under:- 35. It was thus understood that the nexus has to be maintained that product group , viz., the category of the products which is exported. If the import also falls in the same category/group, it would be allowable. In the aforesaid letter, in relation to the export in food, it was clarified that it would be food category with respect to which the exporter was required to maintain nexus. In that particular case, the exporter was exporting dry fruits, he was permitted to import almond which falls in the category of dry fruits . Initially, when Public Notice NO. 16 dated 04.6.2005 was issued replacing earlier Appendix 17D with new one in Para 10 thereof, broad nexus was explained to mean goods imported with respect to any product group of the exported goods within the overall value of entitlement certificate. Same meaning was assigned in Para 3.2.5 of the HBP amended on 08.4.2005. Thus, Circular dated 01.8.2006 of the DGFT was in tune with the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts intermediates, consumables, catalysts and parts which are required for manufacture of resultant products. No such requirement was incorporated in paragraph 3.7.6 of the Foreign Trade Policy. In other words, the condition that the inputs which are imported must be used in the export of the resultant product was not incorporated as part of paragraph 3.7.6 of the Foreign Trade Policy. In that view of the matter, it is not possible to accept the contention of the Respondent that the conditions which were imposed by the circular VBC 14 wp4499.07-14.6 date 8 May 2007 were implicit in paragraph 3.7.6 of the Foreign Trade Policy. We, therefore, come to the conclusion that the conditions which were stipulated by the circular dated 8 May 2007 were ultra vires paragraph 3.7.6 of the Foreign Trade Policy and Customs notification dated 8 April 2005 (Customs Notification 32/05). 11. Before concluding, it would be necessary to note that during the course of the hearing of the Petition, Counsel appearing on behalf of the Petitioner and the Respondent had placed before this Court, a judgment of a Learned Single Judge of the Delhi High Court in Indian Exporters Grievance Forum v. 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