Home Case Index All Cases Customs Customs + HC Customs - 2020 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 598 - HC - CustomsBenefit of SFIS Scheme - FTP 2004-2009 - interpretation of provisions of FTP - rejection of Refund of duty - HELD THAT:- Para 3.6.4.2 of the FTP 2004-2009 is clear and unequivocal in its terms. All Service Providers, who provided service enlisted in Appendix 10 of the FTP, and who have a total free foreign exchange earning of at least ₹10 Lakhs in the preceding financial year, qualified for the benefits of the SFIS. Significantly, the clause talks that all such service providers, shall qualify for the benefits of the SFIS Scheme. Etymologically, the expression “shall” denotes a mandate, and the Supreme Court has, in various decisions, held so - It is also well-settled that beneficial fiscal statute sought to be liberally construed, and provisions which confer tax benefits, conditional to obligations to be fulfilled by the beneficiary, should be so construed as to advance the benefit, rather than deny the same, subject, of course, to fulfilment of the requisite obligation. It cannot be forgotten that export promotions schemes are intended to benefit exporters, who, through the export, earn valuable foreign exchange. It is precisely for this reason that, minimum free foreign exchange has been stipulated as one of the pre-conditions for being entitled to the benefits of SFIS. It would do complete disservice to the intent to clause 3.6.4.2 of the SFIS, therefore, to restrict the benefit thereof, to entities which fulfill the two conditions stipulated therein, viz. of providing of a service/services listed in Appendix-10 of the FTP and of earning free foreign exchange of at least ₹ 10 lakhs in the preceding financial year, to the benefits of the said Scheme. The decision of the said PIC is, therefore, on the fact of it, unsustainable in law - The PIC, no doubt, was entitled to interpret the policy. Under the guise of such interpretation, however, the PIC had no authority, however, to reword the policy, or import, into the policy, conditions and restrictions which were not to be found therein. What the PIC has effectively done is to dovetail para 3.6.4.1 of the FTP 2004-2009 into para 3.6.4.2 thereof. Such an exercise is totally untenable in law. The claim of the appellant, if accepted, would result to substituting para 3.6.4.2, in the FTP 2004-2009, with para 3.12.2 of the FTP 20092014. Needless to say, this can never be allowed. Respondent No. 1, clearly, was entitled to the benefits of the SFIS, under the FTP 2004-2009 - the rejection of refund claim also could not sustain - petition allowed.
|