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2017 (5) TMI 1008 - HC - CustomsMaintainability of petition - Duty Free Import Authorization (DFIA) scheme - duty free import of 'Pesticides' - validity period of DFIA licence - Held that: - the petitioner was denied of his valuable right to utilize the DFIA for duty free import of Insecticide. Therefore, I do not find any merit in the objections regarding maintainability of the instant writ petition, the same is hereby rejected. Respondents cannot blame the transferee of latches or negligence or for not utilizing the DFIA within validity period, for, that by putting up the DFIA for debating in respect of imported goods at any port despite the instructions issued by respondent no.2, the petitioner would unnecessarily have incurred losses in the form of continued interest, demurrage and detention charges, apart from blocking investment on costs of such goods only to fight cumbersome litigation with the hope of getting due legitimate entitlement. Resultantly, the objection of delay and latches raised by the respondents in the above stated peculiar fact situation is hereby repelled. In the interest of justice, the instant petition merits a decision on merits. Retrospective applicability of the said Notification and Public Notice - Held that: - the DFIA would be governed by the FTP in force on the date on which DFIA was issued. Any subsequent amendment in the FTP or HBP cannot govern the entitlement under the DFIA as it existed as per the FTP on the date of issuance of DFIA. Therefore, discharge of export obligation, transferability and utilization of DFIA would necessarily be governed by the policy in force is vague on the date of issuance of DFIA. The benefit of DFIA ought to have been given its actual meaning to include materials that are required in order to produce the export product, in essence, the duty free import under DFIA cannot be confirmed to only such goods which are actually used or physically incorporated in the production of the export product, but would also include goods which, though not used in the production of the export goods, are required in order to produce the same. Once the DFIA licence, when issued, permitted duty free import of any Insecticides with Technical characteristics, specifications and quality as per Schedule of Insecticide Act, 1968, no further requirement can be insisted upon on this score based on any subsequent development or amendment or instructions to deny duty free import of any of such Insecticides mentioned in the said Schedule to Insecticides Act, 1968. Duty Free import under the said DFIA of any of the Insecticides mentioned in the decision of the Norms Committee, recognized as 'required for' cotton farming, if in Schedule of Insecticide Act, 1968 shall necessarily permitted under the DFIA, subject to the quantity restriction mentioned in the Licence as per SION J-373. The Shipping Bills filed while making exports were to be seen at the time of export in the light of the details specified in the DFIA. It would not wholly erroneous and incorrect to insist on specifications of Pesticides used by farmers after the exports. Despite absence of any power under Section 5 of the FTDR Act, 1992 for any retrospective amendment, several such amendments/instructions are being issued by respondent no.2 and are being arbitrarily applied in a retrospective manner, leading to unwarranted litigation and making an adverse impact on growth of export business - I am therefore inclined to request the learned Attorney General of India to look in the aspect and to suitably advise the respondents for remedial action as soon as possible - petition allowed by way of remand.
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