TMI Blog2018 (4) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... paras (ii), added to paragraph 3.14.4 (c) and 3.14.5 (c) vide Notification Nos. 43(RE-2013)/2009-2014 and 44(RE-2013)/2009-2014 the claims could not have been rejected without assigning any reason - In terms of clause (ii), the Regional Authority was required to pass a reasoned order after application of mind on the contents of the applications. Direction was accordingly given to the Regional Authority to pass a speaking order within 8 weeks. Petition allowed with a direction to the Regional Authority to examine the case of the petitioner for grant of export incentive and pass a reasoned and speaking order. - Writ Petition (Civil) No. 5082/2017, 5091/2017, 5093/2017, - - - Dated:- 12-4-2018 - MR. SANJIV KHANNA AND MR. CHANDER SHEKHAR JJ. Petitioner Through: Mr. G.K. Sarkar, Ms. Malabika Sarkar, Mr. Prashant Srivastava and Mr. Deepak Mahajan, Advocates. Respondent Through: Mr. Amit Mahajan, Advocate for DGFT. Mr. Sanjeev Narula, Sr. Standing Counsel for Customs. SANJIV KHANNA, J. (ORAL): This common order and judgment would dispose of the aforestated writ petitions, which primarily relate to interpretation of Notification No. 43(RE-2013)/2009-2014 dated 25th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vi) Diamond, Gold, Silver, Platinum, other precious metal in any form including plain and studded jewellery and other precious and semiprecious stones. (vii) Ores and concentrates of all types and in all formations. (viii) Cereals of all types. (ix) Sugar of all types and all forms. (x) Crude I petroleum oil and crude I primary and base products of all types and all formulations. (xi) Export of milk and milk products. (xii) Export performance made by one exporter on behalf of other exporter. (xiii)Supplies made to SEZ units. (xiv) Items, export of which requires an export authorisation (except SCOMET), will not be considered. (xv) Export of Meat and Meat Products. (xvi) Exports to Singapore, UAE and Hong Kong. Special Provision (e) The scheme is region specific and will cover exports to USA, Europe and Asian countries only. In addition export to 53 countries in Latin America and Africa (as mentioned in Public Notice 3 dated 18th Apri12013) will be entitled to this benefit. Disclaimer provisions of para 3.17 .1 0 (b) of FTP shall not be admissible. This benefit will be over and above any benefit being claimed by the exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f application will be as per para 3.11.9 of HBP v1 and late cut provisions of para 9.3 of HBP v1 2009-14 will be applicable. 6. The aforesaid public notice in our opinion settles the position beyond any doubt and debate. This public notice clarifies that amendment in form of clauses (i) and (ii) to paragraph 3.14.5.(c) of the Foreign Trade Policy were to ensure that annual claims in excess of ₹ 1 crore should be subjected to greater scrutiny by the Regional Authority. In other words, the two newly inserted clauses had to be read harmoniously. Clauses (i) and (ii) were not introduced and inserted as clauses, but as a part of sub-paragraph (c) to paragraph 3.14.5. Clause (i), did not put or prescribe an upper limit. To interpret it differently would make clause (ii) otiose and redundant. The public notice No.28/2009-14(RE-2013) dated 25th September, 2013 had set out the procedure for scrutiny of claims in excess of ₹ 1 crore, by giving details of the documents and particulars to be submitted by the exporter. Clearly, this was not required and necessary, if ₹ 1 crore was the upper limit, and therefore claims over this amount were not required to be scrutinise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (viii) Cereals of all types. (ix) Sugar of all types and all forms. (x) Crude I petroleum oil and crude I primary and base products of all types and all formulations. (xi) Export of milk and milk products. (xii) Export performance made by one exporter on behalf of other exporter. (xiii) Supplies made to SEZ units. (xiv) Items, export of which requires an export authorisation (except SCOMET), will not be considered. (xv) Export of Meat and Meat Products. (xvi) Exports to Singapore, UAE and Hong Kong. Special Provision (e) The scheme is region specific and will cover exports to USA, Europe and Asian countries only. Disclaimer provisions of para 3.17 .1 0 (b) of FTP shall not be admissible. This benefit will be over and above any benefit being claimed by the exporter under any of the Chapter 3 Schemes, therefore, provisions of para 3.17.8 of FTP 2009-14 will not be invoked for such benefit. Utilisation of Scrip (f) The duty credit scrip will be freely transferable. Such scrips shall also be eligible for domestic sourcing as per para 3.17.5 of FTP 2009-14. (for the sake of convenience, amendments/modifications made by Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a demonstrated increase in exports. Its purpose is also clear, viz., to encourage more exports. The policy's terms must, therefore, receive an Interpretation as would advance its stated purpose, viz., to promote and encourage exports. That this is also one of the avowed objects of the Foreign Trade (Development and Regulation) Act, 1992 is also not doubted. Where the policy did not itself place any such cap - and plainly it did not, for we find no words of limitation in it, other than those in the eligibility criteria, and these are accepted - any interpretation of the 2013 Notification, therefore, that restricts the incentives in their entirety would therefore be arbitrary, violating the policy's objective and the mandate of Article 14 of the Constitution of India. 30. It is well-settled that even in matters of policy, this Constitutional mandate of fairness, reasonableness, non- arbitrariness and nondiscrimination binds the Respondents. Once we approach these matters in this manner, then none of the judgments relied upon by Mr. Rana are applicable. This is a case of a policy interpretation by those in charge of its implementation by which, ostensibily to prevent und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of clause (ii), the Regional Authority was required to pass a reasoned order after application of mind on the contents of the applications. Direction was accordingly given to the Regional Authority to pass a speaking order within 8 weeks. 11. We may note that the Bombay High Court in the case of J.S.W. Steel Ltd. (supra) had quashed the so-called clarification dated 23rd September, 2014 stating that the limit prescribed in clause (i) of paragraph 3.14.4.(c) in the Foreign Trade Policy place an upper limit for grant of import incentive for the fourth quarter for the financial year 2012-2013. Following this decision in J.S.W. Steel Ltd. (supra) in Writ Petition No. 2157/2016, Welspun Global Brand Limited and others versus Union of India and Others, decided on 12th June, 2017, Bombay High Court had held that the amount of ₹ 1 crore mentioned in clause (i) to paragraph 3.14.5.(c) of the Foreign Trade Policy did not prescribe or fix an upper limit of ₹ 1 crore for grant of export incentive payable on annual basis for financial year 20132014. 12. In view of the aforesaid discussion, the present writ petitions are allowed with a direction to the Regional Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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