TMI Blog2011 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... with export performance in 2009-10 and/or in other words, existing exporters who continued export up to the previous year - Petition is dismissed - 17 of 2011 - - - Dated:- 28-2-2011 - Indira Banerjee, J. REPRESENTED BY : Shri Abhrajit Mitra, for the Petitioner. [Judgment]. In this writ application, the petitioner has challenged a Circular No. 17 (RE-2010)/2009-14 dated 10th February, 2011 issued by the Joint Director General of Foreign Trade, announcing that an administrative decision had been taken to consider allocation of cotton yarn for export only to applicants with export performance in 2009-10. 2. The petitioner No. 1, a private company within the meaning of the Companies Act, 1956, of which the petitioner No. 2 is a Director, claims to carry on business inter alia of trading in cotton. 3. According to the petitioners, the petitioner No. 1 imports and exports cotton, its Import Export Code number being 0296024937. 4. Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, hereinafter referred to as the Foreign Trade Act, empowers the Central Government, by order published in the Official Gazette, to make provision for development and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficial Gazette and amended in the same manner, the procedure to be followed for the implementation of the Foreign Trade Policy might be published by means of a public notice issued by the Director General of Foreign Trade and might also be amended by such public notice. There is no requirement for notification in the Official Gazette in the case of amendment of the procedure for implementation of the Foreign Trade Policy. 13. Paragraph 2.7 provides that any goods, export or import of which is restricted under ITC (HS) might be exported or imported only in accordance with an authorization or in terms of a public notice issued in this regard. 14. Paragraph 2.8 provides that every authorization shall be valid for the prescribed period of validity and shall contain such terms and conditions as may be specified, which may include quantity, description and value of goods, actual user conditions, export obligation, value addition to be achieved and minimum export/import price. 15. Cotton yarn was all along freely exportable. On 22nd December, 2010, Notification No. 14 (RE-2010)/2009-14 was issued by the Central Government amending Serial No. 161B of ITC (HS) and thereby placing exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e done on a prorata basis. The maximum that an applicant can apply is 100,000 kg. per IEC or what has been exported by such IEC holder during 2009-10, whichever is more. (Example: if an applicant has exported 120,000 kg. in 2009-10, then such applicant can apply for a maximum amount of 120,000 kg. only, similarly an applicant who has not exported at all in 2009-10 can apply up to 100,000 kg.) (ii) Only one application per 1EC will be accepted and any subsequent application made by the same 1EC holder will be rejected and not considered for allocation. (iii) After the allocation is made, the applicants will be required to submit applications in prescribed format (i.e. ANF 2D) to concerned RAs from 11th February 2011 to 18th February 2011. The concerned RAs will then issue the export authorizations for the allocated quantities after scrutiny of the documents. The following documents will be submitted by allottees to the RA s: (a) Application form (ANF 2D) duly filled and signed, (b) Copy of Export Contract alongwith : Either (i) A copy of irrevocable Letter of Credit (LC) duly authenticated by an Indian Bank. Or (ii) FIRC showing receipt of remittance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the e-mail sent earlier will be taken as final. 4. The applicants receiving the allocation will have to submit proof of their past export in 2009-10 (as intimated in their e-mails) to concerned RAs at the time of filing their applications for grant of export licence in addition to other documents already mentioned in serial No. 3 (iii) of Policy Circular No. 15 dated 1-2-2011. 5. Since the last date of export is 31st March, 2011, the allocation would be completed as expeditiously as possible, on receipt of the confirmatory e-mails (last date of receiving such e-mails is 14-2-2011). In view of the above, the allocation of cotton yarn for export as stipulated in Policy Circular No. 15 dated 1-2-2011 is not being made today. 20. The petitioners, who have admittedly not exported any cotton yarn in 2009-10, have questioned the decision to allocate quota for export of cotton yarn, only to those applicants with export performance in 2009-10. 21. The Circular dated 10th February, 2011 has been challenged mainly on the ground that the circular in effect purports to amend the Foreign Trade Policy without recourse to the procedure prescribed in Section 5 of the Foreign Trade Act f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference between announcement and amendment of the Foreign Trade Policy and circulation of a decision in relation to the implementation of Foreign Trade Policy. 29. It is a well-established proposition of law that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone or not at all. The proposition of law laid down by the Supreme Court in the judgments cited by Mr. Mitra cannot be questioned. 30. There can be no doubt that the mandatory requirement of publication of a statute in the Official Gazette cannot be dispensed with as held by the Supreme Court in Rajendra Agricultural University v. Ashok Prasad Ors. reported in (2010) 1 SCC 730 = 2010 (261) E.L.T. 49 (S.C.) cited by Mr. Mitra. 31. In ITC Bhavor River Board Anr. v. Mondal Revenue Officer, AP Ors. reported in (1996) 6 SCC 634, cited by Mr. Mitra, the Supreme Court held that where the parent statute prescribed the mode of publication of promulgation, that mode had to be followed and such a requirement was imperative and could not be dispensed with. The Court held that publication of exemption notification in the Andhra Pradesh Gazette as required by Section 11(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a difference between amendment of policy, a clarification, and/or working out of details in implementation of policy. Under the scheme of the statute, one finds a clear distinction between an amendatory provision and a clarificatory provision. The power to amend the Foreign Trade Policy is conclusively vested in the Central Government and this has to be done by notification of the Central Government whereas the power to clarify is vested in the Director General of Foreign Trade. 37. Broadly imports fall in two categories, general and restricted and there is also a prohibited category. Change of categorization can only be done by amendment under Section 5 of the Foreign Trade Act. Categorization and re-categorization cannot be done by policy circulars as held by the Supreme Court in Atul Commodities (P) Ltd. v. Commissioner of Customs reported in (2009) 5 SCC 46 = 2009 (235) E.L.T. 385 (S.C.). It is not open to the Director General of Foreign Trade to change categorization of items from the category of free export to category of restricted export . 38. Under paragraph 2.3 of the Foreign Trade Policy, the Director General of Foreign Trade is empowered to interpret the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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