TMI Blog2019 (4) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 on the FOB value of exported final product. It is not disputed that the Public Notice dated 31st March, 2000 fixing the rate of credit at 15% under the DEPB scheme is not made specifically retrospective. It is also not the petitioner's case that the enhancement of the credit rate under the DEPB scheme with effect from 1st April, 2000 was in view of a clarification with regard to the correct interpretation of the Exim Policy or the Handbook of the Director General of Foreign Trade - A plain reading of the provision in para 7.50 of the Handbook being relied upon by the petitioners would reveal that it applies only where the credit rate is not notified. In this case, the credit rate under the DEPB scheme was first notified on 5th July, 1997 and thereafter enhanced on 31st March, 1999, and later on 31st March, 2000. Thus, it would have no application to the present facts. The reliance upon the retrospective benefit of credit rate under the DEPB scheme in case of Marine Products is without placing on record the Public Notice by which the same was given. In any case, from the Trade Notice dated 26th February, 1999 annexed at Exhibit' P' to the petition, it appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out. At that time, the handbook of procedures was also issued by public Notice under paragraph 4.11 of the Exim Policy 1997-2002. It set out standard Input-Output norms which are used for issuing of Quality Based Advance License. The petitioner's final product finds mention at Sr. No.302, 303 and 304 of the Input-Output norms providing for different norms dependent upon the nature of goods used as raw material / inputs to manufacture final products. Moreover, the products listed in the Input-Output norms will also form the basis for granting benefit under the DEPB scheme. 4. The objective of the DEPB Scheme is to neutralize the incidence of custom duty payable on the import content of the exported product so as to make the exported goods more competitive. This is provided by grant of duty credit against the product exported under the DEPB Scheme at such rates as are specified by the Director General of Foreign Trade by issuing public notice. The credit so available under the DEPB scheme is utilized to discharge the custom duty on import of goods to be used in final products to be exported. 5. At the time of issuing the Exim Policy 1997-2002 and the handbook with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this petition. It seeks to set aside the order dated 27th February, 2001 and prays for a direction to the respondents that the public notice, bearing No.1(Re-2000) dated 31st March, 2000 providing for credit at 15% of the FOB value of final product exported be applied retrospectively w.e.f. 1st April, 1997. 9. Mr. Bulchandani, the learned Counsel appearing in support of the petition submits as follows : (a) that the impugned order dated 27th February, 2001 passed by the Deputy Director General of Foreign Trade be set aside and the public notice No.1(Re-2000) dated 31st March, 2000 fixing credit at 15% on the FOB value of final product w.e.f. 1st April, 2000 be given retrospective effect w.e.f. 1st April, 1997 when the Exim Policy 1997-2002 and the handbook became effective; (b) Attention was invited to paragraph 7.50 of the Handbook of Procedures, which provides for benefit of DBPB rate of credit being made available on export made, provided an application of grant of DEPB is made within a period of 90 days from the date of exports or 60 days of notification, whichever is later. Thus, it is submitted that the respondent was bound to grant retrospective benefit to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued prescribing the rate of credit available under the DEPB scheme in respect of the final products exported by the petitioners. In terms of the Exim Policy as provided in paragraph 7.14 thereof, under the DEPB scheme an exporter may apply for credit as a specified percentage of FOB value of exports. The rates at which the credit may be available would be notified by the Director General of Foreign Trade by way of Public Notice. The credit is available only in case the same has been notified. It was only w.e.f. 5th July, 1997 that a Public No. 22/97 was issued in exercise of powers under paragraph 4.11 of the Exim Policy inter alia providing the rate of credit at 7% of the FOB value of export under the DEPB scheme to be utilized in discharge of duty on imports. Thereafter, on the representation made by the Council to which petitioners belong the credit rate of 7% under the DEPB scheme for petitioners' final product were enhanced to 8% w.e.f. 31st March, 1999 for finally to 15% w.e.f. 31st March, 2000 on the FOB value of exported final product. 13. It is not disputed before us that the Public Notice dated 31st March, 2000 fixing the rate of credit at 15% under the DEPB sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the erstwhile para 7.50 of the Policy introduced w.e.f. 21st May, 1997 was in the Handbook at that time. However, the same does not find a place at the time when the Public Notice was issued on 31st March, 2000 (commencing from 1st April, 2000) as it stood substituted by the new provision. 16. In the above view, we see no reason to interfere with the impugned order dated 27th February, 2001. 17. It may be pointed out that the issue of credit rate for DEBP scheme would fall within the realm of delegated legislation. Thus, in the absence of express provision enabling a delegate to make legislation with retrospective effect, the same is beyond the competence of the delegate. In fact as the Delhi High Court in Malik Tanning Industries Vs. Union of India, 320 ELT 508 has very succinctly stated the above position in law as under : 24. The power exercised by the Central Government is a power delegated by the Legislation. It is well-settled that in absence of an express provision enabling a delegate to make delegated Legislation with retrospective effect, no such power can be inferred. Section 5 of the Act does not empower the Central Government to frame policy with retro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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