TMI Blog2020 (2) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... the Scheme, the Government has reserved the right to specify from time to time the export products which shall not be eligible for calculation of entitlement. Since the Government has reserved right in public interest in terms of the Scheme notified under the Act, therefore, the Circular dated 21st January, 2009 cannot be said to be illegal in any manner. There are no merit in the argument that exports made through an Export Oriented Unit would be entitled to incentives. The purpose of the Scheme is that 100% Export Oriented Units or units situated in Special Economic Zone are not to be granted incentives. The purpose and object of the Scheme notified cannot be defeated by granting incentives to units which exports though 100% Export Oriented Units - there are no merit in the argument that the Scheme excludes the benefit of exports by units in DTA in a Scheme pertaining to FMS notified along with Yojna in April 2006 for the reason that FMS has an explicit clause whereas the DTA was not excluded from claiming exemption under clause 3.8.2.2 related to Yojna. The export-oriented units cannot use the appellant for export under the Scheme and to claim benefit of export when it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xx 3.8.5. Government reserves the right in public interest, to specify from time to time the export products, which shall not be eligible for calculation of entitlement. 4. The Circular dated 21st January, 2009 was issued so as to clarify the scheme notified for the year 2006-07. The relevant part of the circular reads as under: xx xx xx 2. However, in FTP RE-2006 (issued on 7.4.2006), exports made by EOUs were made ineligible for benefits under VKGUY scheme [vide introducing Para 3.8.2.2 (c)]. In further, in FTP RE-2006, two new schemes, namely, Focus Market Scheme (FMS) and Focus Product Scheme (FPS) were introduced. Similar provisions were made under para 3.92.2(b) for FMS, and under Para 3.10.2.2 (b) for FPS. Accordingly, for the period from 1.4.2006 to 31.3.2007, exports made by EOUs (or through DTA units) are not eligible for benefits under VKGUY, FMS and FPS. 5. The appellant is said to be engaged in manufacturing/trading and selling of Guar Gum, Guar Chri and Korma, Refined Splits and Guar Gum Powder in the domestic as well as export market. The appellant asserts that it is purchasing Guar Gum Powder from M/s. Neelkanth Polymers, which is 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made there-under. xx xx xx 5. Foreign Trade Policy-The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner amend that policy: Provided that the Central Government may direct that, in respect of the Special Economic Zones, the foreign trade policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette. 7. Learned counsel for the appellant argued that the Scheme excludes the benefit of exports by units in Domestic Tariff Area - for short, DTA pertaining to Focus Market Scheme - for short, FMS notified along with Yojna. Therefore, there was specific exclusion of exports by DTA in FMS, whereas, there is no such exclusion in the Yojna. Therefore, the Revenue has drawn distinction between the two Schemes notified on the same day, which shows that the Revenue has treated two Schemes differently, therefore, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrine or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where having regard to the nature of the problems greater latitude require to be allowed to the legislature. The question, however, is as to whether it can be done retrospectively, thereby taking away some right that had accrued in favour of another person? 10. It is argued that 100% export-oriented units have been specifically excluded from benefit of the Scheme when it was notified on 7th April, 2006. The appellant is purchaser from the said 100% exportoriented unit and claiming benefit of the Scheme in respect of exports made by it. It is contended that since the 100% exportoriented units are not entitled to the benefit under the Scheme, therefore, the purchasers from such export-oriented units will also not be entitled to the benefit of the Scheme. It is contended that what cannot be done di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Yojna. Since the appellant is a purchaser from 100% exportoriented unit, therefore, the medium of the appellant cannot be used to avoid the intended purport of the policy for the year 2006- 07. We find that the export-oriented units cannot use the appellant for export under the Scheme and to claim benefit of export when it is not permissible for them directly. 16. Consequently, we do not find any merit in the present appeal. The same is dismissed. Civil Appeal No. 10637 of 2010 17. The appellant is 100% export-oriented unit. Such export-oriented unit stands specifically excluded from the Scheme in Para 3.8.2.2, therefore, we do not find any merit in the present appeal. The same is dismissed. Civil Appeal Nos. 7233 of 2009 and 7257 of 2009 18. The appellant challenged the change in the Policy Vishesh Krishi Upaj Yojna wherein 100% export units were denied the benefit of exemption on the ground that the policy binds the respondents for a period of five years and that such policy is discriminatory as direct tariff areas were excluded. The High Court held as under: After hearing the counsel for the petitioners, we do not find any illegality in the i ..... 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