TMI Blog2022 (12) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... e FTP 2015-20, this Court does not deem it fit to venture further on individual facts of the present case - It is now open to the Petitioners to raise their grievances before the authorities regarding other reliefs as prayed for in the instant Writ Petitions and the authorities are directed to consider the grievances of the Petitioners, if any, and adjudicate upon them afresh, in accordance with law. Petition disposed off. - W.P.(C) 9084/2020 and CM APPL. 29315/2020,W.P.(C) 1120/2021,W.P.(C) 6166/2022 and CM APPL. 18573/2022, W.P.(C) 10384/2018 and CM APPL. 40487/2018,W.P.(C) 7144/2022 - - - Dated:- 5-12-2022 - HON BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA, AND HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD MEMO OF APPEARANCE: Mr. Kishore Kunal, Mr. Parth Mr. Kanak Grover, Advocates for Petitioner in W.P.(C) 10384/2018. Mr. Kamal Sawhney, Ms. Anishka Gupta, Mr. Krishna Rao, Mr.Deepak Thakur Ms. Aakansha Wadhwani, Advocates for the Petitioners in W.P.(C) 9084/2020, 1120/2021, 6166/2022, 7144/2022. Mr. Ajay Dipaul, CGSC with Mr. Kamal Digpaul Ms. Swati Kwatra, Advocates for Respondent/ UOI in W.P.(C) 10384/2018. Mr. Balbir Singh, ASG and Mr. Ravi P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the foreign trade policy or is dealing with specified services or specified technology 5. On 31.03.2015, the Respondent No. 1 in exercise of powers conferred under Section 5 of the FTDR Act, announced the Foreign Trade Policy for the year 2015-2020 ( FTP 2015-20 ). This replaced the earlier Serve from India Scheme under the prior Foreign Trade Policy with a Service Exports from India Scheme ( SEIS ) policy under the FTP 2015-20. 6. In the SEIS, under the FTP 2015-20, service providers of notified services are incentivized in the form of Duty Credit Scrips at a certain percentage of their Net Foreign Exchange ( NFE ) earnings. A service provider of such notified services located in India shall be eligible to avail the benefit of these Scrips if it garners a minimum NFE of USD 15000 $ in a particular financial year while rendering services. 7. Under paragraph 3.08 which gives the specifications for eligibility of afore stated benefits, clause (f) states that in order for one to claim reward under the scheme, the service provider shall have to have an active IEC at the time of rendering such services, for which rewards are claimed. The same is reproduced as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for the financial year 01.04.2017 - 31.03.2018, the Petitioner would not be entitled to be benefitted under the SEIS scheme as IEC has only been obtained by it on 06.02.2020. The Petitioner submitted a response on 01.07.2020 to this stating that obtaining IEC is only a procedural requirement and against the same, a substantive benefit cannot be denied. Once the Petitioner had obtained the requisite NFE then the benefit under the FTP 2015-20 cannot be denied to it. Pertinently, it was stated that as envisaged in Paragraph 2.05 (I)(a) of the FTP 2015-20 duly amended vide notification No. 24/ 2015-20 dated 08.08.2018, a service exporter is required to have an IEC only if it intends to take benefit under the SEIS. 13. On 21.07.2020, another deficiency memo was issued which is also impugned herein. By way of the same, the Petitioner was again informed that it is not entitled to the claim for SEIS for the financial year 01.04.2017 31.03.2018 as the IEC has only been obtained by it on 06.02.2020 in terms of Para 3.08 (f) of FTP 2015-20. Aggrieved by these events, the Petitioner has approached this Court under its extraordinary Civil Writ Jurisdiction. 14. The Petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciated that benefits under the SEIS scheme can be realized by an exporter only at the end of relevant year as the scheme requires an exporting service provider to have garnered a minimum NFE of USD 15,000 $to claim benefit under the SEIS. It was submitted that to gauge what the revenue of an exporting service provider would be at the starting of a financial year is difficult and only after upon conclusion of a financial year, would the service provider would be able to quantify its NFE. That putting a burden on an entity to gauge the amount of NFE in the beginning of a financial year would be unreasonable, arbitrary and onerous on the said exporter. 18. It was further submitted that the Respondents ought to have considered that mere delay in allotment of IEC cannot render the Petitioner disentitled for claiming benefit under the FTP. Even in cases relating to import and export of goods where as per the mandate of Section 7 of the FTDR Act, it is compulsory for the importer to have an IEC for such imports or exports, the Hon ble Tribunals and Authorities under the Customs Act, 1962 have taken a view that the absence of IEC is only a tactical approach which can be condoned. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent law under which power has been derived. In another decision of the Supreme Court in case of General Officer Commanding-in-Chief Vs. Dr. Subhash Chandra Yadav, AIR 1988 SC 876, it has been ruled that, before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. 16. In the light of said legal position, we have examined the eligibility Clause 3.08(f) of the FTP requiring IEC number at the time of rendering services. We have particularly examined whether said condition is consistent with the statue or it has exceeded the Authority under which delegation was made. Reverting to the Section 7 of the FTDR Act, it pertains to the mandatory requirement of IEC number for making import or export of general goods. However, exception has been carved out by the proviso particularly in cases of import or export of services or technology. In the said eventuality, IEC number shall be necessary only when the service provider is taking the benefits under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-2020 Subject: Amendment in Para 2.05 of Foreign Trade Policy 2015-2020 S.O. 3941(E).- In exercise of powers conferred by Section 3 of FT (D R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby amends and revises the provision in Para 2.05 of the Foreign Trade policy (2015-20) on Importer-Exporter Code (IC) as under: 2.05 Importer Exporter Code (IEC) Existing Para Revised Para (I) (a) Application for obtaining IC may be filed online in ANF 2A with applicable fees and submitted with digital signature. (b) When an e-IEC is approved by the competent authority, applicant is informed through e-mail that a computer generated e-IEC is available on the DGFT website. By clicking on Application Status after having filled and submitted the requisite details in Online IC Application webpage, applicant can view and print his e-IEC. (c) The applicant may submit online application with the following details /documents (scanned copies to be submitted/ uploaded) along with the IEC applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the Constitution of India, and that para 3.08(f) is a reasonable provision. 24. The Respondents submitted that the Petitioner has also not exhausted its remedies available under Section 15 of the FTDR Act and para 2.59 of Handbook Provisions which provides for Appeals and Personal Hearing by DGFT for Grievance Redressal respectively. 25. Heard learned Counsels appearing for the Parties and perused the material on record. 26. As rightly pointed out by Ld. ASG Mr. Balbir Singh, the principal grievance of the exporters that the Government cannot insist upon IEC at the time of export stands satisfied in light of the above stated amendment. 27. This Court is also in agreement with the decision of the Bombay High Court in Smarte Solutions (supra). However, it was brought to the notice of this Court during these proceedings, the said amendment pointed out by Ld. ASG was not brought to light before the Bombay High Court. 28. In view of the amendment made in the FTP 2015-20, this Court does not deem it fit to venture further on individual facts of the present case. 29. It is now open to the Petitioners to raise their grievances before the authorities regarding oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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