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2019 (4) TMI 450

under the Duty Exemption Pass Book Scheme - Whether the petitioners are entitled to credit of duty on its exported product under the DEPB scheme at 15% with retrospective effect from 1st April, 1997, though the same was issued only on 1st April, 2000? - Held that:- 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. - 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 interpretati .....

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tion which arises in this petition is : Whether the petitioners are entitled to credit of duty on its exported product under the DEPB scheme at 15% with retrospective effect from 1st April, 1997, though the same was issued only on 1st April, 2000 ? 3. Briefly, the facts leading to this petition are that the petitioner is engaged in manufacture of drugs, pharmaceutical and fine chemicals. It inter alia manufactures and exports Oxyclozanide B.P. (Vet) ( final product for short) using Trichloro Salicylic Acid (TCSA). On 1st April, 1997, the Exim Policy 1997 to 2002 was notified under Section 5 the Act. In terms of Chapter 7 of the said Policy, the provisions relating to duty exemption / remission scheme including the DEPB Scheme was 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 .....

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eme in respect of the petitioners' final product to 15% of the FOB value of exported final products. 7. On issue of the above Public Notice dated 31st March, 2000, the petitioners by representation dated 13th December, 2000 to the Additional Director General of Foreign Trade sought fixation of credit at the rate of 15% of the FOB value of exported goods under the DEPB scheme effective from 31st March, 2000 be given with retrospective effect from 1st April, 1997. In support instances of Public Notices being issued with retrospective effect in case of some marine products were cited. However, the above representation was rejected by the impugned order dated 27th February, 2001. 8. Thus, leading to the filing 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 De .....

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ndbook of Procedures (Vol.2), 1997-2002. In case the credit for such products are notified, the exporter shall be entitled for DEPB provided an application for issuance of DEPB is made within a period of 90 days from the date of exports or 60 days from the date of notification of credit rate, whichever is later. However, in such cases exports made, shall be entirely on the risk and responsibility of the exporter. 12. We have considered the rival submissions. The undisputed facts in the present case is that the petitioners' final product was mentioned in the standard Input-Output norms. However, on introduction of the Exim Policy 1997 to 2002, no public notice was issued 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 .....

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ed under the DEBP scheme unless the DEPB rate of the concerned export product is notified. Thus, no fault can be found with the view taken by the impugned order dated 27th February, 2001. 15. 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 be a case where the description of the product in the Input-Output norms was itself changed / amended. This would lead to a change in the rate of credit of duty 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 ab .....

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