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TMI Blog2023 (2) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... was not a party to the writ petition which led to the decision of the Ld. Division Bench in M.D. OVERSEAS LIMITED VERSUS UNION OF INDIA AND ORS. [ 2020 (6) TMI 140 - DELHI HIGH COURT] - HELD THAT:- This ground would be completely untenable inasmuch as the public notice which was under challenge was the identical public notice which was the basis of the Petitioner s rejection. The said public notice upon being quashed, any action taken consequential to the said public notice, would also not stand in the eyes of law. The ld. Division Bench s judgment would squarely apply to the facts of the Petitioner s case as well. A quashed public notice cannot be relied upon by the department to refuse the Advance Authorization. Retrospective applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for import of gold bars in order to enable manufacturing of gold jewellery and medallions. It is the case of the Petitioner that between 2015 to 2019, the Petitioner had been granted such authorizations regularly for importing gold bars and export of gold medallions. 4. On 26th June, 2019, the Petitioner applied for issuance of an Advance Authorization. However, the same was rejected. The Respondent issued Public Notice No.35/ (2015-2020) dated 26th September 2019 to the effect that Advance Authorization would not be issued where the items for export were Gold Medallions and Coins or Any other jewellery/articles manufactured by a fully mechanized process. 5. Pursuant to the said public notice, a rejection letter dated 30th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise has to 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. 31. In view of the aforesaid decision also, 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. 32. In view of the aforesaid facts, reasons and judicial pronouncements, we hereby quash and set aside the public notice dated 26th September 2019 issued by respondent No.1 and consequential letters dated 1st November, 2019 which are Annexure P-2 and Annexure P-3 respectively to the memo of wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification dated 10th August, 2020 to argue that subsequent to the ld. Division Bench s judgment, a fresh notification has been issued clarifying that Advance Authorization shall not be issued where the item of export is Gold Medallions and Coins , or Gold jewelry/articles manufactured by a fully mechanized process . 9. It is submitted by the ld. Counsel for the Petitioner that both the grounds on which the rejection has been premised would be untenable inasmuch as the subsequent circular/notification cannot have retrospective effect. The Petitioner s case can only be processed on the basis of the legal position that existed on the day when the Advance Authorization was sought and was rejected. 10. He further submits that the ld. Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the department to refuse the Advance Authorization. 13. Insofar as the second ground with respect to retrospective application of the notification dated 10th August, 2020 is concerned, the Advance Authorization of the Petitioner was applied for on 26th June, 2019 and the same would have to therefore, be considered in terms of the legal position prevalent on the said date. The subsequent notification cannot be applied retrospectively to reject the said Advance Authorisation. Under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, it is the settled legal position as held in Kanak Exports (supra), that a retrospective application of a later notification, cannot be made by the Central Government. Relevant port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself would not mean that such a provision empowers the Government to do so retrospective. xxx xxx xxx 128. We have already discussed these aspects in detail. To recapitulate, it is held by us that Section 5 of the Act does not empower the Government to make amendments with retrospective effect, thereby taking away the rights which have already accrued in favour of the exporters under the Scheme . No doubt, the Government has, otherwise, power to amend, modify or withdraw a particular Scheme which gives benefits to a particular category of persons under the said Scheme. At the same time, if some vested right has accrued in favour of the beneficiaries who achieved the target stipulated in the scheme and thereby became eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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