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TMI Blog2022 (8) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... which was not intended or led under the principal statute. The learned counsel for the petitioner would submit that the FTP has been framed in pursuance of powers delegated under Section 5 of the FTDR Act. It is the prime submission that FTP being delegated legislation, it should be in conformity with the principal statute. Reverting to the Section 7 of the FTDR Act, it pertains to the mandatory requirement of IEC number for making import or export of general goods. However, exception has been carved out by the proviso particularly in cases of import or export of services or technology. In the said eventuality, IEC number shall be necessary only when the service provider is taking the benefits under the FTP. The proviso does not lay down that the IEC number is essential at the time of rending services of said specified kind. The requirement of IEC number is only for taking benefits under the scheme. Therefore, it is abundant clear that the eligibility criteria of Clause 3.08(f) of the FTP has imposed additional restriction of having IEC number at the time of rendering services which was not intent or purport of the statute - the said condition is against the principal legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have held a valid IEC number at the time of rendition of export services, accordingly, the application was disposed of by the Policy Relaxation Committee of DGFT vide order dated 14th November, 2019. The petitioner has filed review application, however it was similarly disposed of vide order dated 3rd March, 2020. Being aggrieved by said rejection, the petitioner-Company has invoked the writ jurisdiction of this Court. 6. The petitioner would submit that the object of FTP is to encourage exports from the India. The petitioner s eligibility for availing benefit under SEIS was rejected merely on technicalities that the petitioner did not hold an active IEC number on the date of rendition of services. As per para 3.08 of the FTP, one of the condition to avail the benefit under the SEIS is that the service provider should have an active IEC number at the time of rendering services for which SEIS befits have been claimed. The petitioner had obtained an IEC number on 12th March, 2018 i.e. before applying for the benefit of the scheme. It is submitted that the requirement of obtaining an IEC number at the time rendering services was not the statutory requirement. The requirement of IE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exceeding the Authority conferred under the FTDR Act. Inclusion of such excessive additional condition in delegated legislation is ultra-vires. It is submitted that the DGFT cannot frame conditions in contravention with the provisions of the FTDR Act. The FTDR Act is a principal legislation and the FTP is notified by drawing its power from Section 5 of the FTDR Act which is delegated legislation. 10. The reply-in-affidavit has been filed by the the Deputy Director General of Foreign Trade, resisting the contents of the petition. It is submitted that as per para 3.08(f) of the FTP which came into force from 1st April, 2015, it is clear requirement to hold an active IEC number at the time of rendering services for which reward or benefit has been claimed under the scheme. The petitioner has rendered the services of export during the period from 2015 2018 whilst obtained an IEC number on 12th March, 2018. The petitioner has applied for the benefit on 27th March, 2019, whilst the FTP came into force prior to that on 1st April, 2015. It was within the petitioner s knowledge that it must possess an active IEC number at the time of rendering services in terms of the policy. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g services for claiming reward. It is to be examined whether the said condition is inconsistent or casts an additional obligation on the exporter which was not intended or led under the principal statute. The learned counsel for the petitioner would submit that the FTP has been framed in pursuance of powers delegated under Section 5 of the FTDR Act. It is the prime submission that FTP being delegated legislation, it should be in conformity with the principal statute. In other words, by way of delegated legislation, additional rights or obligations cannot be imposed. In this regard, reliance is placed on the decision of the Supreme Court in case of Kunj Behair Lal Butail and others Vs. State of H. P. and others, AIR 2000 SC 1069, wherein it is ruled that delegated power to legislate by making rules is for carrying out the purposes of the Act is a general delegation without laying down any guidelines. It cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. 15. In reported case of Supreme Court Employees Welfare Association Vs. Union of India AIR 1990 SC 334, the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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