TMI Blog2016 (5) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It is, thus, a statutory notification whereby the EXIM Policy 2002-2007 was amended. With the issuance of such a notification, amendment came into effect from the date of issuance of the notification, i.e., 05.06.2002 and this notification, inter alia, made the exporters who make supplies from DTA to SEZ eligible to claim benefit of DEPB in lieu of drawback for supplies made to SEZ or unit in SEZ. Insofar as the Circular No. 25/2003 dated 01.04.2003 is concerned, it is only administrative in nature. It prescribed the procedure/requirements that were to be fulfilled for claiming the benefit of DEPB in lieu of drawback. By administrative circular, notification dated 05.06.2002 which was passed under Section 5 of the Act, could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Policy 2002-2007 (hereinafter referred to as 'EXIM Policy') which was promulgated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as 'Act'). It is not in dispute that this Policy is statutory in nature. The Act also empowers the Central Government to amend, modify or rescind such policy. Exercising this power which is conferred by Section 5 of the said Act, Notification No. 7/2002-2007 dated 05.06.2002 was issued amending/correcting the EXIM Policy. By this Notification, amendments were made to paragraph 7.9 of the EXIM Policy. Since it is the interpretation of this Notification which is called in question, it would be useful to reproduce the said Notification in its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the EXIM Policy. However, what was stipulated by the said Notification was that the concerned person making such 'exports' can avail the benefit of DEPB in lieu of Drawback. In order to allow the aforesaid benefit of DEPB in lieu of drawbacks, the Customs Department issued Circular No. 25/2003 dated 01.04.2003. This circular laid down the procedure that has to be followed for availing the benefits. Paragraph 2.5 thereof, detailing such a procedure, reads as under: - 2.5 Duty Entitlement Pass Book (DEPB) Scheme DEPB Scheme announced in 2002-07 EXIM Policy has been continued. In this regard earlier Customs Notification No. 45/2002-Cus. dated 22.4.2002 and DOR Circular No. 24/2002-Cus. dated 6.5.2002 refers. Henceforth, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest was, however, turned down on the ground that Circular No. 25/2003 came into effect only from 01.04.2003 and, therefore, the exports made before the said date were not eligible for DEPB benefits. The submission of the appellant herein that it became entitled to these benefits by virtue of the Notification dated 05.06.2002 was not accepted. This order rejecting the entitlement of the appellant was challenged by the appellant by filing the aforesaid writ petition before the High Court. The High Court also agreed with the view of the respondent-Government holding that the benefit would enure only when Circular dated 01.04.2003 was issued and, therefore, the exports made prior to that period would not be eligible for such a benefit of DEPB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for claiming the benefit of DEPB in lieu of drawback. By administrative circular, notification dated 05.06.2002 which was passed under Section 5 of the Act, could not be altered as that would amount to amendment of the notification and it was not within the powers of the Customs Authorities to alter the said date. Moreover, as mentioned above, this is only a procedural circular which stipulates the conditions/ procedure that had to be followed for claiming the benefit of DEPB. No doubt, the respondent-authorities could, insofar as this procedure is concerned, put conditions for claiming the benefit of DEPB for the period in question but could not say that the exporters would not be entitled to such a benefit from 05.06.2002 but would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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