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TMI Blog2022 (11) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... tor also included to claim certain benefits. Paragraph 2.3 of the FTP 2004-09 as well as the paragraph 2.3 of the FTP 2009-14 contemplate that questions and/or doubts in respect of the interpretation of any provision of the Foreign Trade Policy would be referred to DGFT whose decision would be final and binding, in respect of such questions. Therefore, in the absence of any amendment in the Foreign Trade Policy the main point will arise whether the DGFT by Circular can rewrite the policy or amend the policy. When the policy provides for incentive for entire Plastics sector whether that can be restricted to the particular Serial Number. As per Section 5 of the FTDR Act, 1992, which makes very clear that to amend the policy is always with the Central Government. Such a power has not been granted to the DGFT as per Section 6 of the Act. Considering the powers of DGFP, it is only given power to clarify the doubts raised as to the interpretation of Policy, taking such powers he cannot amend the very Policy itself. Though much reliance has been placed to the notification issued by the DGFP was upheld by the Calcutta High Court and Kerala High Court, the case of UNION OF INDIA VERSUS E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s chapter. The scrip could be used for import of capital goods in the specified sector for which the scheme is applicable. The petitioner operates as a 100% Export Oriented Unit (EOU) licenced and approved by the Government of India vide letter of approval in LOP No.A/2003/022/EOUTN dated 02.05.2003. The Petitioner are manufacturers and exporters of Thermoplastic High Pressure Hoses and have been conferred with a Stat Export House status by the appropriate authority vide certificate bearing No.A/2003/22/EOU-TN dated 10.06.2010 as recognition of export performance. 2.b. The Petitioner is an exporter of Thermoplastic High Pressure Hoses to various countries and the same is a sector which is eligible for the benefits of availing SHIS. The Petitioner have not availed the benefit of any Export Promotion Capital Goods Scheme ('EPCG')) under the FTP during the year 2011-12 and the same is not under dispute. Being eligible for the incentive in the form of SHIS, the petitioner had applied for a SHIS at 1% of the FOB value of exports for the year 2011-12 vide its application No.04/21/88/00175/AM14 dated 18.12.2013 under Chapter 3.16 of the FTP. The application was submitted befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, this case has got no merit for consideration as they have exported the product falling under ITC HS Code 39173100. 3.c. The Petitioner has challenged vide their letter dated 14.01.2015 to the Respondent office that there exist no such provision in FTP restricting the benefits to plastic products classifiable under 3901 to 3914 and the relevant provision only prescribes that products classifiable under plastic sector are eligible for the status holder benefit. According to the Respondent, the expression Plastic means those materials of headings 3901 to 3914 under Sl.No.1 under Notes in Chapter 39 of ITC HS Classification. Therefore, prayed for dismissal of the petition. 4.a. In the rejoinder the Petitioner denying the entire counter affiidavit. It is stated in the rejoinder that the Petitioner vide letter dated 14.01.2015 submitted that there is no provision under FTP restricting the benefit of SHIS to plastic products falling in S.Nos.3901-3914. According to the Petitioner the FTP provides that the plastic sector is an eligible section SHIS and the restriction by the Respondent is beyond the provisions of FTP. Respondent having accepted the reply of the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a contrary stand has been taken in the counter for the first time. It is his further contention that the letter dated 19.9.2014 itself the Respondent admitted that the Petitioner's product comes under Plastics Sector and not under the Engineering Sector and in the letter dated 30.12.2014 also they have admitted that though Plastics is also included at Para 3.16.4(v) of FTP, the Plastics from S.Nos.3901 to 3914 only will be allowed. According to the learned counsel that the clarification issued by the DGFT is contrary to the Foreign Trade Policy. It is his contention that as per para 2.3 of the Foreign Trade Policy 2019-14 DGFT can pass any clarification when any question or doubt arises in respect of interpretation of any provisions contained in FTP, or classification of any item in ITC (HS) or HBP-v1 or HBP-v2. Such being the position when there is no ambiguity in the policy DGFTcannot rewrite the policy by clarification when admittedly the Foreign Trade Policy provides incentives for Plastics. Therefore, making clarification without any doubt or ambiguity the DGFT's letter is no force in the eye of law. 5.b Having rejected the claim of the petitioner under di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the incentives claimed as per the Foreign Trade Policy.The impugned order passed by the Respondent on the ground, since the Petitioner is 100% EOU, is not entitled for incentives. Whereas for the first time in the counter new ground has been canvassed that though the Plastics have been included in the Foreign Trade Policy only certain category of the plastics i.e.,7 serial number alone are eligible for the incentives. It is relevant to note that it is not disputed that the Petitioner exporting the plastics. In this regard it is relevant to extract the Foreign Trade Policy 2009-14 came into effect on 05.06.2012. In Para 3.16.4 of the Foreign Trade Policy it is stated as follows: 3.16.4 Status Holders of the following Sectors shall be eligible for the Status Holders Incentive Scrip (SHIS): (i) Leather Sector (excluding finished leather (ii) Textiles and Jute Sector. (iii) Handicrafts: (iv) Engineering Sector (excluding Iron Steel, Nonferrous Metals in primary or intermediate forms, Automobiles two wheelers, and nuclear reactors parts and Ships, Boats and Floating Structures, (v) Plastics; and (vi) Basic Chemicals (excluding Pharma Produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Central Government wherein Plastics sector also included to claim certain benefits. Paragraph 2.3 of the FTP 2004-09 as well as the paragraph 2.3 of the FTP 2009-14 contemplate that questions and/or doubts in respect of the interpretation of any provision of the Foreign Trade Policy would be referred to DGFT whose decision would be final and binding, in respect of such questions. Therefore, in the absence of any amendment in the Foreign Trade Policy the main point will arise whether the DGFT by Circular can rewrite the policy or amend the policy. When the policy provides for incentive for entire Plastics sector whether that can be restricted to the particular Serial Number. As per Section 5 of the FTDR Act, 1992, which makes very clear that to amend the policy is always with the Central Government. Such a power has not been granted to the DGFT as per Section 6 of the Act. 13. In this regard it is useful to refer the judgment of the Delhi High Court in M/s.Yum Restaurants (I) Pvt. Ltd case (supra) wherein in para 19 it is held as follows: 19. I find it difficult to accept this contention as the meaning sought to be attributed to paragraph 3.12.2 of the FTP 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. Considering the powers of DGFP, it is only given power to clarify the doubts raised as to the interpretation of Policy, taking such powers he cannot amend the very Policy itself. Though much reliance has been placed to the notification issued by the DGFP was upheld by the Calcutta High Court and Kerala High Court, the above case is not applicable to the facts of the present case. The Notification in the above cases are in different context not in respect of amending the very policy conditions itself. 16. Similarly, it is also submitted that the Central Government has notified Authentication (Orders and other Instruments) Rules, 2002 wherein the rule, only with regard to the authentication of orders and all other instruments made in the name of the President. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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