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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 ..... of Advance Authorization for the import of Gold bars and export of manufactured Gold Jewellery and Gold Medallions by the Petitioner. 3. The Petitioner is a company engaged in manufacturing and export of gold jewellery, articles, medallions, bars, plates and rods and trading of gold, silver, platinum and palladium. It has been a recognized export house since 2017. The case of the Petitioner is that in terms of Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Respondent - DGFT is to issue Advance Authorizations 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 regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was based on the same public notice no. 35/ (2015-2020). It is the case of the Petitioner that the basis of the rejection being public notice no. 35/(2015-2020), was challenged before this Court in W.P.(C) 12197/2019 wherein the ld. Division Bench quashed the said public notice. The operative portion of the said judgement dated 11th February 2020 reads as under: "30. In view of the aforesaid decision, categorisation or recategorization cannot be done by the policy circulars, such exercise 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rization was rejected by invoking Public Notice No.35 dated 26.09.2019. The Hon'ble Delhi High Court quashed and set aside Public Notice dated 26.09.2019 and allowed the WP(C) No. 12197/2019 filed by M/s MD Overseas Limited vs. UOI and others vide its order dated 11.02.2020. The Petitioner was not a party to the WP and therefore cannot be granted benefits of the Court's order dated 11.02.2020." 8. In addition, in the review notice, reliance is placed by the DGFT on a notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective and not retrospective, unless rule making authority has been vested with power under a statute to make rules with retrospective effect. In the present case, Section 5 of the Act does not give any such power specifically to the Central Government to make rules retrospective. No doubt, this Section confer powers upon the Central Government to 'amend' the policy which has been framed under the aforesaid provision. However, that by itself 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, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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