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2017 (2) TMI 711 - GUJARAT HIGH COURT

2017 (2) TMI 711 - GUJARAT HIGH COURT - TMI - SEZ units - Worn and used clothing - withdrawal of the exemption - public interest - Effect of change in the policy dated 17.9.2013 - retrospective or prospective - entitlement of selling of un-mutilated worn clothing being export surplus and export rejects in DTA on payment of applicable duties - whether the petitioners should be allowed to sell in DTA their past accrued entitlement of un-mutilated clothing up to 15% of the imports made till 18.5.20 .....

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of about 12,000 workers. One of the key motive of establishment of SEZ is to generate maximum employment, which would be defeated if their LOAs are not renewed. - The worn clothing units of SEZ provide large employment, they fulfilled their NFEE requirement by way of exporting same products to the various countries outside India. The worn clothing imported is non-hazardous in nature, further import is fumigated at the origin to ensure that imported worn clothing is free from germs and they .....

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sales of un-mutilated worn clothing to the extent of 15% of their CIF value of imports made prior to 19.5.2010 and for unutilized DTA entitlement of un-mutilated worn clothing as on 19.5.2010, DTA entitlement quantity of un-mutilated worn clothing to be calculated as per the valuation norms as prevalent on 19.5.2010 on payment of applicable duties and taxes. - Petition allowed - decided in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 6806 of 2014 TO SPECIAL CIVIL APPLICATION NO. 6811 .....

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d. They would, therefore, be disposed of by this common order. 2. Brief facts as emerging in Special Civil Application No.6806 of 2014 are as under: 2.1 The petitioners were granted Letter of Approval (for short, LOA ) issued by the Development Commissioner prior to publication of Special Economic Zone Act, 2005 (for short, the Act ) and Special Economic Zone Rules, 2006 (for short, the Rule ). They are engaged in the business of sorting, segregating and grading worn and used clothing. Their LOA .....

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ely mutilated and cleared in Domestic Tariff Area (for short, DTA ) on payment of applicable duties and after examination by the Customs. As per Foreign Trade Policy (for short, FTP ), mutilated used cloth is classified in Open General License (for Short, OGL ) category. As per the terms of their LOA, the petitioners are under only one obligation that is to be positive in Net Foreign Exchange Earnings (for short, NFEE ) and this is to be monitored cumulatively at the end of block period of 5 yea .....

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of un- mutilated worn clothing after the date of notification dated 19.5.2010 but they were eligible for their past accrued entitlement for the period from 1.4.2009 to 18.5.2010. This is because the notification dated 30.03.2006 provided that the petitioners would be entitled to sell in DTA un-mutilated worn clothing to the extent of 15% of CIF value of imports made in the previous year. This was denied to the petitioners by the respondents. On 3.4.2013, the respondents issued a Circular along .....

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dia to the extent of 40% at the end of second year, 80% at the end of fourth year and 100% at the end of fifth year and thereafter, 100% every year of their total turnover. Apart from this condition, the units were shown to be entitled to sell their un-mutilated worn clothing being export surplus and export rejects to the extent of 15% of their FOB value of their exports. After issue of policy dated 17.9.2013, the LOA of the petitioners were renewed in December, 2013, wherein all the conditions .....

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bject to outcome of this petition that they had filed and which is being disposed of. 3. The petitioners have challenged the policy dated 17.9.2013 in its entirety and letter dated 13.1.2014 issued by the Ministry of Commerce and Industry. Policy dated 17.9.2013 imposes conditions of physical exports out of India to the extent of 40% at the end of second year, 80% at the end of fourth year, 100% at the end of fifth year and thereafter 100% every year. The letter dated 30th January, 2014, issued .....

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put in appearance on behalf of the petitioners while learned advocate, Mr.Devang Vays and Mr.Parth Bhatt have appeared for the respondents. 5. Mr.Kavina, learned senior counsel has argued that the definition of exports is given in Section 2(m) of the Act, which does not say exports , export means physical export out of India. Rule 53 of SEZ Rules, 2006, provide various transactions of SEZ units against payment of foreign exchange as exports. Rule 19(6) says that SEZ unit has only one obligation .....

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etter dated 30.1.2014 of the respondents are unreasonable, arbitrary, irrational and illegal without authority of law. Since the same have seriously impelled the activities of the petitioners and are violative of Article, 14, 19 (1) (g), 265 and 300-A of the Constitution of India. Vide Notification dated 30th March, 2006 issued by DGFT, the worn clothing units in SEZ were permitted to clear their un-mutilated clothing as export surplus and the export rejects to the extent of 15% of CIF value of .....

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extent of 15% of CIF value of imports made in the previous year. Thus, the petitioners are entitled for the past accrued entitlement of 15% of CIF value of imports at least for imports made for a period upto 19.5.2010. If the past accrued entitlement which was legally available to the petitioners is not allowed by the respondents, it will be promissory estoppal on the part of the Government. There are number of varieties of units for e.g. ready-made garments, cosmetics, engineering, pharmaceutic .....

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fore coordinate Bench. I have been informed that the said writ petitions have been allowed and the notification issued by SEZ has been quashed and set aside. However, the petitions in hand can be independently disposed of without making any further reference to such decision. 6. As soon as, the un-mutilated worn clothing being export surplus and export rejects were disallowed with effect from 19.5.2010, the petitioners made representation for releasing their past accrued entitlement and in respo .....

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ts are falling under Rule 18 (4) (C) and their LOAs are renewed by BOA and BOA is empowered to put such conditions as they may deem fit. The Government had to consider and issue in its totality that it has to take account of all positive and negative of an issue and therefore disallowing 15% in DTA are justified. Further, the clearance of 15% of un-mutilated clothing were subject to issue of amendment of notification dated 19.5.2010 by DGFT. Learned counsel for the respondents has also argued th .....

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dents only to regulate the functioning of the plastic recycling units and worn clothing recycling units as these industries imposes health hazards and Government would like to discourage the operation of this Industry and eventually would like to phase them out. They also argued that the past entitlement to sell un-mutilated clothing in DTA prior to Notification dated 19.5.2010 should not be allowed as this will have the serious effects on the new garment manufacturing industry in India. 8. Lear .....

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iven by the Government and withdrawal of an exemption at any stage is the competence of the Government. The worn clothing is causing substantial damage to the local domestic manufacturers of the readymade garments and further that the worn clothing imported in India is unhygienic and is an health hazard. In support of these submissions, learned counsel has relied upon a decision of the Apex Court in the case of Kasinka Trading and Another V/s. Union of India and Another reported in (1995) 1 SCC .....

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ent with the Act and Rules. According to Rule 53, they are required to remain positive in NFEE and provisions of the Act/ Rules only allow the respondents to monitor their NFEE only at the end of block of 5 years cumulatively. Although Government has power to amend the policy as per the powers vested under Section 5 of the FTDR but what petitioners are challenging is that the revision in policy cannot delete their past accrued entitlement which has already been earned before notification dated 1 .....

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By way of notification dated 19.05.2010 vested rights of the petitioners were curtailed with retrospective effect. The said notification, on the face of it, does not have any retroactive order, retrospective operation. The interpretation put by the respondents is not supported by the plain wordings of the said notification. Also, the word stands deleted imply that the deletion would operate, hereafter, not before the date of notification. The petitioners are entitled to benefit of DTA entitlemen .....

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ed 19.5.2010, such permission of 15% of imported worn clothing in DTA was withdrawn. By way of such notification dated 19.5.2010 the Government cannot take away the vested rights of the petitioners i.e. for the period of 1.4.2009 to 19.5.2010. Language of notification is prospective in nature. Promissory estoppal can be applied against the notification published by the Government as petitioners are having vested rights. The petitioners have made representation to release their past accrued entit .....

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quantity of un-mutilated worn clothing to be calculated as per the valuation norms as prevalent on 19.5.2010. 11. Learned counsel for the petitioners challenged the validity of the policy dated 17.9.2013 on the ground that it is against the provisions of SEZ Act / Rules. Power to impose condition in the Letter of Permission or Letter of Approval (Fort short, LOP or LOA ) is provided in Section 15(8)(B) read with Section 2(w) and Section 55 of the Act. 12. The Government under Section 15(8) (b) o .....

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) of this Act prescribe powers to make rules. The Authority in this case has bypassed the mandatory conditions of laying of the rules and therefore, it is against the law, and therefore, indirect imposition of the conditions is against the prescribed law and therefore, the authority has no power to impose such conditions on the existing units. Only those terms and conditions which have been enacted by way of rules can be imposed and therefore, impugned conditions imposed by the respondents is de .....

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) defines the terms and conditions, subject to which the Unit shall undertake the authorized operations and its obligations and entitlements. Section 55 (3) provides power to make Rules, every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the sessi .....

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s inconsistent with the current provision of the SEZ Act / Rules. It has been argued that imposition of conditions of physical export of 100% to be achieved in slab as provided under Section 2(m) of the Act which defines export which includes not only physical export but also other modes. Definition of export is given in Section 2(m) of the Act and further as per Rule 53 (deemed exports) are also considered export for discharge of export obligation. Under Section 2(m)(i) export means taking good .....

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es and since Central Government has not prescribed such conditions, the same cannot be imposed indirectly, as no new conditions can be imposed under the existing units and no new terms and conditions can be prescribed by the BOA for the existing units. 15. Learned counsel for the petitioners has further argued that even after expiration of the period of 5 years, the LOA has to be extended for another period of 5 years at a time and therefore, the breaking in period of LOA is not permissible in a .....

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worn clothing industry in SEZ and pointed out that according to the findings of the parliamentary committee even if 20% DTA sales of the import value if allowed would be equal to 0.01% of the market size of the Indian Garment industry, therefore, there is no question of destroying the domestic market as observed by the Parliamentary Committee. 17. Learned counsel also referred to blanket industry of Panipat and has contended that as many as 1,50,000 workers are engaged in this industry. Apart f .....

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alth hazard as pointed out by counsel for the respondents. He has also explained in detail as to how the notification will put an end to Industry. However, this Court is not inclined to go into such details at this stage. 18. On law points, learned counsel for the petitioners argued that the Competent Authority cannot issue order / office memorandum, instructions in contravention to the statutory rules. It can only be issued to supplement the statutory rules but not to supplant it. In the presen .....

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r amend the scope of substantive provisions of the parent Act. It can be done only by amending the statute if the legislature is competent to take subject matter. That even the imposition of new condition is required to be amended by the legislature itself and therefore, the policy of the Government cannot amend the Act itself and therefore, the conditions cannot be imposed by way of policy as it is against the law. That the administrative instructions are issued without following procedure pres .....

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conditions which are in contravention with the provisions of the Act and the Rules. In support of these arguments, learned counsel has relied upon following judgments. (A) AIR 2007 SC 750, Union of India V/s. M/s. Asian Food Industries; (B) AIR 2006 SCW 5272, MRF Ltd. Kottayam V/s. Assistant Commissioner of Sales Tax (C) 2013 (16) SCC 147, Union of India V/s. Ashokkuamar Aggarwal (D) 1997 (4) SCC 301, P. Sadagopan and others V/s Food Corporation of India (E) 2013 (4) SCC 656, Tata Sky V/s. Stat .....

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pondents have provided that the petitioners will be allowed to sell unmutilated worn clothes, being export surplus and export rejects on payment of applicable duty to the extent of 15% of FOB value of their exports. The unilateral withdrawal of 15% from retrospective effect may not be justified. This industry is providing large employment to unskilled workers in the local area and phasing them out will result in loss of employment of about 12,000 workers. One of the key motive of establishment o .....

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fore dispatch so that the worn clothing brought in to India are free from germs and bacteria and therefore, it cannot be called hazardous. 21. Counsel pointed out that the worn clothing does not fall within the hazardous material as prescribed by the Hazardous and other Wastes (Management and Trans-boundary Movement) Rules or any other Act or Rules. On the contrary, the Parliamentary Committee on petitions recommended that worn clothing SEZ units if given reasonable incentives can earn substanti .....

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r fraud . 23. In para Nos. 22 and 23, it has been laid down as under: 22. The argument on behalf of the appellants, vehemently pressed by Mr.Ashok Desai and Mr.Harish Salve, their learned Senior Advocates, is to the effect that since the Notification No.66 of 1979 had itself indicated that it shall be operative till 31.3.1981, the Government could not withdraw the same before the expiry of that date. It was argued that the appellants had placed orders for the import of PVC resin relying upon the .....

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been made that it could not be rescinded or modified before that date even if the Government was satisfied that it was necessary in the public interest to rescind it. Since the notification had been issued under Section 25(1) of the Act, the very same power was available to the authority for rescinding or modifying that notification and the appellant ought to have known that the said notification was capable of or liable to be revoked, modified or rescinded at any time even before the expiry of .....

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Section 25 of the Act is indicative of the position that it is the public interest and public interest alone which is the dominant factor. It is not the case of the appellants that the withdrawal of Notification No.66 of 1979 by the impugned notification was not in public interest . Their case, however, is that relying upon the earlier notifications they had acted and the Government should not be permitted to go back on its assurance as otherwise they would be put to huge loss. The Courts have .....

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o come when the Government acts in its governmental, public or sovereign capacity. The burden of customs duty etc. is passed on to the consumer and therefore the question of the appellants being put to a huge loss is not understandable. No injustice has been done much less fraud practiced by the Government in withdrawing the exemption. 23. The appellants appear to be under the impression that even if, in the altered market conditions and continuance of the exemption may not have been justified y .....

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acts in public interest and neither any fraud or lack of bona fides is alleged much less established. The Government has to be left free to determine the priorities in the matter of utilization of finances and to act in the public interest while issuing or modifying of finances and to act in the public interest while issuing or modifying or withdrawing an exemption notification under Section 25(1) of the Act. 24. The aforementioned decision of the Apex Court emphasis is laid down on the point th .....

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y can earn substantial foreign exchange and provide employment opportunities to unskilled labours. 26. The entire business of shoddy / blanket industry of Panipat procures their raw material from the worn clothing units in SEZ and thus huge number of indirect labour employment has to be appreciated. Considering the provision of Section 15(8) (B) read with Section 2(w) of the Act it is apparently clear that no new condition can be imposed on the petitioners in their LOA without amending the relev .....

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o arbitrary and illegal. Resultantly, aforementioned judgment relied upon by learned counsel for the respondents is not helpful to advance their case. 27. In regard to the past accrued entitlement, it is abundantly clear to this Court that the petitioners were entitled for the DTA sales of un-mutilated worn clothing being export surplus and export rejects on payment of applicable duties to the extent of 15% of their CIF value for their imports made in previous year i.e. from 1.4.2009 to 18.5.201 .....

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y applicable to the facts of this case as notification can only have prospective effect and by reason of policy, vested or accrued right cannot be taken away. Such right cannot, therefore, be taken away by amendment thereof. 29. Learned senior counsel for the petitioners, Mr.Kavina, pressed into service number of other judgments. In the case of MRF Ltd. Kottayam V/s. Assistant Commissioner (Assessment), Sales Tax & Ors., on the point of promissory estoppal, it has been held that Board of Rev .....

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others (supra) it was laid down, coming now to notification dated 5.5.2008, it is elementary that a notification is issued in exercise of powers under the Act cannot amend the Act. The Notification cannot enlarge either the charging section or amend the provisions of collection under Section 4 of the Act read with the 1942 Rules . 31. Similarly, in yet another decision Union of India and others V/s. Ashokkumar Aggarwal, in para Nos.58 and 59, it has been held that: 58. A Constitution Bench of t .....

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followed and it is a settled proposition of law that an authority cannot issue orders / office memorandum/ executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. 32. So going through the aforementioned law laid down by the Apex Court, there is no hesitation to hold that the authority has bye-passed the mandatory provisio .....

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ioners Industry-Association that the matter is being taken up with the Ministry of Commerce and Industry. The petitioners approached the Court well in time and thus their matter is not time barred. 34. From the observations and findings of the Parliamentary committee on petitions or otherwise, it is evident that worn clothing units of SEZ provide large employment, they fulfilled their NFEE requirement by way of exporting same products to the various countries outside India. The worn clothing imp .....

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