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2014 (12) TMI 359 - HC - CustomsBenefit available under Focus Product Scheme in respect of “Technical Textiles” - Denial of claim of incentive under FPS - grievance of the petitioners is compounded as the impugned circular excludes the products exported by them from the definition of technical textiles with retrospective effect - whether the Director General of Foreign Trade (hereafter ‘DGFT’) could issue the impugned circular to recall a benefit provided to the petitioners under the Foreign Trade Policy, with retrospective effect - Held that:- In terms of Section 5, the Central Government is empowered to formulate and announce the Foreign Trade Policy and/or also in the like manner amend that policy. A bare reading of the provisions of Section 5 of the Act indicates that a policy cannot be made with retrospective effect. The expression ‘formulate and announce’ used in Section 5 clearly means that the power is to be exercised prospectively. The power exercised by the Central Government is a power delegated by the Legislation. It is well settled that in absence of an express provision enabling a delegate to make delegated Legislation with retrospective effect, no such power can be inferred. Section 5 of the Act does not empower the Central Government to frame policy with retrospective effect. Thus, the schemes framed under the Foreign Trade Policy cannot be altered or amended with retrospective effect. Benefit granted to the petitioners under the FPS has already been availed by them in terms of the Foreign Trade Policy as in vogue at the material time. Thus, the effect of the impugned circular is to recall a vested right; this, in my view, would also violate Article 300A of the Constitution of India. Neither the central government, nor DGFT would have the power to amend the Foreign Trade Policy or withdraw any export benefit with retrospective effect. The impugned circular inasmuch as it seeks to restrict the list of eligible items under entry 33 of Table 4 of Appendix 37D of the Handbook-I with retrospective effect is set aside. Accordingly, the impugned letters of demand are also set aside. - Decided in favour of assessee.
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