TMI Blog2016 (10) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... counter to the plain interpretation of the provision and in guise of clarification, an entry cannot be amended. The power to amend an entry would be with the Government of India. Quite apart from the nature of the impugned trade notice, in any case, the respondents could not have stalled processing of the petitioners' applications for export benefits flowing from the MEIS which would stand on entirely different footing. Even if the petitioners were to refund the benefits already received under FPS, the respondents would have to follow the procedure for ensuring recoveries. Merely stalling the petitioners' applications for grant of export benefits flowing under a fresh scheme would simply not be permissible. The impugned trade notice dated 14.12.2015 is quashed. The respondents shall not seek any recoveries of the export incentives granted to the petitioners under FPS and shall process further their applications for export benefits under MEIS in accordance with the provisions made therein. - Decided in favor of petitioners. - SPECIAL CIVIL APPLICATION NO. 11262 of 2016 With SPECIAL CIVIL APPLICATION NO. 11263 of 2016 With SPECIAL CIVIL APPLICATION NO. 11264 of 2016 With SPEC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vats or the like including pressure-reducing valves and thermostatically controlled valves 2% 2% This Entry 242 was renumbered as Entry 269 in a revised Appendix 37-D. 4. Taking benefit of the said scheme, the petitioners would apply for the duty credit scrip on its exports of valves for industrial uses. A copy of one of such application is produced by the petitioners at page 50 along with the petition. Counsel for the petitioners would point out that in such application, it was clearly mentioned that what was exported was parts of valves made of stainless steel and manufactured through ferrous investment and precision casting process. Thus, clearly the fact that these valves were not bicycle tube valves was disclosed by the petitioners at the outset. It is undisputed that the authorities granted the benefit of the said scheme on all exports made by the petitioners of such valves and parts of the valves. At page 84, the petitioners have produced a list of, in all, 28 such applications made by the petitioners and granted by the respondents. 5. The FPS ended on 31.03.2015. It was replaced by a new Merchandise Exports from In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the like including pressure-reducing valves and thermostatically controlled valves' 2. DGFT has received representations from exporters requesting for providing benefits under focus Produce Scheme of Foreign Trade Policy 2009-14 on the export of industrial valves under item at Sl. No. 269 of Appendix 37-D, Table-1 of Foreign Trade Policy 2009-14 notified vide public notice no. 52 dated 25.02.2014 or under any other Sl. No. in the earlier public notices having same description and even to those items which are not used in bicycles. 3. It is hereby clarified that intention from the beginning had been to grant incentive to bicycle parts only under this serial No. 269 under FPS and this intention has been clearly indicated. Other items, which are not parts of bicycle, appearing in the above mentioned description are not eligible for FPS benefit under FTP 2009-14. The Focus Product Scheme has sunset on 31.03.2015, therefore, there is no merit in requests for providing benefit to other products. 4. Cases where RA has issued any scrips against the export of parts other than those uses in bicycle under ITCHS 8481 mentioned at Sl No. 269 of Appendix 37-D, Table-1 of Foreign Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Items of a kind used on bicycles' was deleted. (iv) Counsel submitted that the true intention can be gathered from the reference to the Customers Tariff Entry 8481 which referred to taps, cocks, valves etc and had no connection with the items used in bicycles; (v) Counsel lastly contended that even otherwise, it would be wholly impermissible to allow the respondents to withdraw the benefits already granted. Firstly, the petitioners and similarly situated exporters would arrange their affairs on the premise that on the specified exports, the exporter would get incentives in the form of 2% duty credit scrip on the FOB value of the exports. Such scrips were also freely transferable. The petitioners had transferred such scrips. Any action on part of the respondents to recover the amounts involved would lead to great prejudice to the petitioners. (vi) In support of his contentions, counsel relied on following decisions: In case of Malik Tanning Industries vs. Union of India reported in 2015 (320) E.L.T 508 (Del.) In case of Suchitra Components Ltd. vs. Commissioner of Central Excise, Guntur reported in 2007 (208) E.L.T 321 (S.C) 11. On the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically controlled valves. Various parts mentioned in the first part of the entry ex facie are not useful on bicycles. The later part, the inclusive portion of the entry when it refers to pressure reducing valves and thermostatically controlled valves also are not used on bicycles. If we therefore, put unnecessary stress on the heading of the entry itself, we would destroy the very essence of the entry and render the entire incentive nugatory. If the intention of the policy makers was to confine the benefits of the export incentives to parts that can be used in bicycles, the description of various items in the said entry which can never be used on bicycles ought not to find place there. There was thus a clear mismatch between the heading and the main entry itself. 15. Strictly speaking, though the new policy may not provide a safe guide to interpret the old policy, we may take note of the contents of the new policy also. This is for the reason that if the Government of India noted a mismatch between the heading and the contents of an entry, the reasonable way to resolve the discrepancy would be to delete that portion which was unintentional. In other words, if the intention beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry would be with the Government of India. 19. In case of Malik Tanning Industries (supra) the High Court held that the DGFT would no have power to issue circulars with retrospective effect. In the said judgement also, the distinction between a clarificatory circular and one which tampers with the entry itself was recognized. 20. In case of Pushpanjali Floriculture Pvt. Ltd. vs. Union of India reported in [2016] 340 ELT 32 , Punjab and Haryana High Court held and observed as under: 30. Even on first principles, we find that neither Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, nor Para 1.2 of the FTP, whereunder the impugned Notifications dated 01.08.2013 and 21.08.2014 purport to have been issued, allow retrospective divesting, by any newly added provision, of the rights already available to the License holder/subsequent transferee, of the DFIA. It is well settled that the power to legislate retrospectively is not inherent, and has to be specifically conferred by statute no such power seems to emanate, either from Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 or from Para 1.2 of the FTP. The following decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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