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2015 (10) TMI 2191

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..... d 14th May, 2015 (Exh 'C' to the Petition) under which Respondent No.3 informed the Petitioner that their Applications for Duty Credit Scrips amounting to ₹ 25,24,483 (for FY 2012-13) and ₹ 29,00,354 (for FY-2013-14) were deficient as the Petitioner was a foreign brand and hence not entitled to avail of the benefits under the Served From India Scheme (hereinafter referred to as SFIS ) as prescribed in the Foreign Trade Policy 2009-14 (for short, FTP 2009-14 ). As a consequence, the Petitioner has also prayed for a writ of mandamus seeking a direction against the Respondents to forthwith issue the Duty Credit Scrips as per their Applications dated 26th March, 2015 (Exh 'B' to the Petition). 3. According to the Petitioner, they are entitled to the Duty Credit Scrips under the FTP 2009-14 on the basis of a decision of the Delhi High Court in the case of Yum Restaurant India Pvt Ltd Vs. Union of India Ors decided on 27th January, 2015. It is the case of the Petitioner that by not issuing the Duty Credit Scrips, the Respondents are denying the benefits granted under the SFIS and exposing the Petitioner to payment and liability of customs duty, althou .....

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..... t is undisputed that the brand Castrol India is not an Indian brand. On these facts and considering the arguments canvassed on behalf of the Petitioner and the issues raised in this Writ Petition, we find that the same are squarely covered by a Division Bench judgment of this Court to which one of us (S. C. Dharmadhikari, J.) was a party, in the case of Shri Naman Hotels Private Ltd v/s The Union of India and Others Writ Petition No.33 of 2015 and other connected Writ Petitions decided on 17th August, 2015. On perusing the aforesaid decision as well as the contentions raised in the present Writ Petition, we find that the same arguments that have been canvassed before us, were also put forth by the parties in the case of Naman Hotels Private Ltd. Writ Petition No.33 of 2015 and other connected Writ Petitions decided on 17th August, 2015. After considering these very same arguments [including the decision of the Delhi High Court in Yum Restaurant's Case (Supra)], by an elaborate and reasoned order, the aforesaid contentions were negated. In this regard, it would be appropriate to reproduce paragraphs 36 and 37 of the decision in Naman Hotels Private Ltd.1, which read as under:- .....

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..... credit or exemption from payment of a duty or tax. None can say that the mandate of Article 19 (1) (g) of the Constitution of India is violated merely because at certain time and on certain occasions, the concessions and benefits were given or there is exemption from payment of duty and taxes imposed by laws of Parliament. The traders or citizens to whom the benefits and facilities are granted on fulfillment or requirement of a distinct eligibility criteria stand apart from others. Those not granted the same cannot claim any parity. Hence, in the absence of a vested right and only on the strength of a particular treatment of such cases in the past, no plea of violation of constitutional mandate enshrined in Articles 14 and 19 (1) (g) can be accepted. and Therefore, the word 'Entitlement'as is found in paragraph 3.12.4 is important. That Service providers of services listed in Appendix 41 of HBP Volume 1 would alone be eligible and such eligible service providers will be entitled to Duty Credit Scrip equivalent to 10% of free foreign exchange earned during current financial year from 1st January 2011 and for services rendered prior to 1st January, 2011, Appendix 10 of HBP Vo .....

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..... and Corporate entities (international and national) fell within such a definition and are entitled to the benefits. We are also not as much concerned with the nature of services, paragraph 9.52 which defines the term services include all tradable services covered under General Agreement on Trade in Services (GATS) and earning free foreign exchange. Further paragraph 9.53 defines the term Service Provider . That means a person providing: (i) Supply of a 'service' from India to any other country; (ii) Supply of a 'service' from India to service consumer of any other country in India ; (iii) Supply of a 'service' from India through commercial or physical presence in territory of any other country; (iv) Supply of a 'service' in India relating to exports paid in free foreign exchange or in Indian Rupees which are otherwise considered as having being paid for in free foreign exchange by RBI. 37. A bare reading of the same would indicate that persons providing a service from India to any other country, from India to service consumer of any other country in India, supply of a service from India through commercial or physical pre .....

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..... Raising of all types of foreign currency loans; 2. Export proceeds realization of clients; 3. Issuance of Foreign Equity through ADRs/GDRs or other similar instruments; 4. Issuance of foreign currency Bonds; 5. Sale of securities and other financial instruments; 6. Other receivables not connected with services rendered by financial institutions; and 1) if earned through contract/regular employment abroad (e.g.labour remittances) (b) Payments for services received from EEFC Account; (c) Foreign exchange turnover by Health care Institutions like equity participation donations etc (However, remittances received on account of medical treatment, surgery, testing, consultancy and health care provided by the institution shall be eligible;) (d) Foreign exchange turnover by Educational Institutions like equity participation, donations, etc (However remittances received on account of the course fees and consultancy provided by the institution shall be eligible); (e) Export turn over relating to services of units operating under SEZ/EOU/EHTP/STPL/BTP schemes or supplies of services made to such units; (f) Clubbing of turnover of service .....

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