Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 28 September, 2015.
+ W.P.(C) 1345/2015
M/S. SESA STERLITE LIMITED ..... Petitioner
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
Manish Garg, Mr. Akshay Bhardwaj,
Ms. Shreya Dahiya and Ms. Reena,
Advs.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Neeraj Jain and Mr. Kavindra
Gill, Advs. for R-1 to 3/UOI.
AND
+ W.P.(C) 5317/2015
KONARK EXIM PVT. LTD. ..... Petitioner
Through: Dr. G.K. Sarkar, Ms. Malabika Sarkar
and Mr. Prashant Srivastava, Advs.
Versus
DIRECTORATE GENERAL OF
FOREIGN TRADE ..... Respondent
Through: Mr. Sanjeev Narual, CGSC with Mr.
Ajay Kalra, Ms. Meha Rashmi and
Mr. Anshuman, Advs. for UOI.
AND
+ W.P.(C) 5288/2015
K.S. COMMODITIES PVT. LTD AND ANR. ..... Petitioners
Through: Mr. Vinod Mehta, Adv.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Manik Dogra, Ms. Nitya and Ms.
Nidhi Parashar, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. These petitions are being listed together and have been taken up
together for hearing today also.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 1 of 20
2. The counsel for the respondents in W.P.(C) No.5288/2015 seek
opportunity to file counter affidavit which has not been filed till date.
3. I am however not inclined to give any opportunity for filing the
counter affidavit as sought inasmuch as the respondents are the same in all
the petitions and counter affidavits have been filed in other two petitions.
Moreover, enough opportunity has already been given for filing the counter
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affidavit and these matters have been listed today for hearing, from 24
September, 2015, on which date no such request was made.
4. The counsels for the respondents Directorate General of Foreign
Trade (DGFT) in W.P.(C) Nos.5317/2015 & 5288/2015 state that the
challenge in these petitions is to a Notification and thus the matter is to be
considered by the Division Bench of this Court.
5. The senior counsel for the petitioner in W.P.(C) No.1345/2015 states
that the challenge is not to any Notification to require consideration by the
Division Bench of this Court. The counsels for the petitioners in W.P.(C)
Nos.5317/2015 & 5288/2015 state that though the prayer paragraphs in their
petitions may have been differently worded but the challenge made by them
and pressed by them also before this Court is not to any Notification and
even if reads so, be treated as the challenge as made in W.P.(C)
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 2 of 20
No.1345/2015.
6. In this view of the matter, the counsels have been heard. I may in this
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regard also notice that the Registry of this Court vide Notification dated 31
July, 2013 has also clarified that though writ petitions challenging
constitutional validity of any Act, Rules or Regulations are to be listed
before the Division Bench dealing with that subject but challenge to a
policy, scheme or guideline is not to be treated as a challenge to the vires of
the Act, Rules or Regulations.
7. The senior counsel for the petitioner in W.P.(C) No.1345/2015 has
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drawn attention to the Notification No.27(RE-2012)/2009-2014 dated 28
December, 2012 of the Ministry of Commerce & Industry, Govt. of India
issued in exercise of powers under Section 5 of the Foreign Trade
(Development and Regulation) (FTDR) Act, 1992 read with para 2.1 of
Foreign Trade Policy (FTP), 2009-2014 making amendments to the FTP
2009-2014 with immediate effect. By the said amendment, a new paragraph
was added at the end of para 3.14.3 of FTP 2009-2014 as para 3.14.4 and
which para 3.14.4 is as under:
“3.14.4 Incremental Exports Incentivisation
Scheme
Objective (a) The objective of the Scheme is to
incentivize incremental exports.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 3 of 20
Entitlement (b) An IEC holder would be entitled for a
duty credit scrip @ 2% on the incremental
growth (achieved by the IEC holder) during
the period 01.01.2013 to 31.3.2013
compared to the period from 01.01.2012 to
31.3.2012 on the FOB value of exports.
Incremental growth shall be in respect of
each exporter (IEC holder) without any
scope for combining the exports for Group
Company.
(c) Incentive will be admissible only if the
IEC holder has achieved growth in the
financial year 2012-2013 vis a vis financial
year 2011-2012. Quantum of benefit will be
calculated on the incremental growth
achieved subject to eligibility criteria given
in para 3.14.4(d) of FTP 2009-014.
Eligibility Criteria (d) For the purpose of the scheme, export
performance shall not be allowed to be
transferred from any other IEC holder.
Benefit under this scheme will not be
allowed to an exporter who had made no
export between 01/01/12 to 31/03/12. The
following exports shall not be taken into
account for calculation of export
performance or for computation of
entitlement under the Scheme:
(i) Export of imported goods or exports
made through trans-shipment.
(ii) Export from SEZ / EOU / EHTP /
STPI / BTP / FTWZ.
(iii) Deemed Exports
(iv) Service Exports
(v) Third Party exports
(vi) Diamond, Gold, Silver, Platinum,
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 4 of 20
other precious metal in any form
including plain and studded jewellery
and other precious and semi-precious
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 / petr5oleum oil and crude /
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 of 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 3.17.10 (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
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 5 of 20
3.17.5 of FTP 2009-14.”
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The Notification dated 28 December, 2012 also adds the following at
the end of para 3.17.8 of FTP 2009-2014:
“Benefit under para 3.14.4 of FTP will not be covered under
this para”
And under the heading Effect of this Notification provides as under:
“Effect of this Notification: The Scheme to incentivize
incremental exports is being notified.”
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8. It is the case of the petitioner in W.P.(C) No.1345/2015 that it, on 26
July, 2013, made a claim under the aforesaid amendment, of the value of
Rs.10,95,83,585.60 paise and the necessary incentive scrips were issued to it
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on 19 March, 2014 but the same were lost by it necessitating it to apply to
the respondents for issuance of duplicate scrip and which have been denied
to the petitioner. The duplicate scrips have been denied to the petitioner
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because of a Notification No.44(RE-2013)/2009-2014 dated 25 September,
2013 of the Govt. of India, again in exercise of powers under Section 5 of
the FTDR Act, further amending Chapter 3 of the FTP 2009-2014 by
inserting the following paragraphs (i) & (ii) below paragraph 3.14.4.(c)
inserted by the earlier Notification, as under:
“(i) Benefit of Incremental Export Incentivisation Scheme for
the last quarter of 2012-13 will be limited to 25% growth
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 6 of 20
or Incremental growth of Rs.10 crores in value,
whichever is less.
(ii) Claims in excess of this value will be subjected to greater
scrutiny by Regional Authority.”
The effect of the Notification mentioned is as under:
“Effect of this Notification: Few amendments have been
made in Notification No.27 dated 28.12.2012 for claiming
benefit of Incremental Export Incentivisation Scheme.”
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And because of clarification dated 23 September, 2014 issued by the
respondent Directorate General of Foreign Trade (DGFT) clarifying that
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sub-paragraphs (i) & (ii) aforesaid added vide Notification dated 25
September, 2013 below paragraph 3.14.4(c)
“are independent paras in both the Notifications Nos. 44 and
43 dated 25.09.2013. The limiting of claim is clearly mentioned
in the first sub-para of both notifications which fixes the upper
limit of grant of benefit. The second sub-para in both the
notifications only directs RAs to exercise caution while dealing
with cases of incremental growth of exports under the scheme.
It does not entitle any applicant to higher levels of benefits
under the scheme.”
and directing that entitlement under the scheme be computed as
under:
“ IEIS for the last quarter of 2012-13: Benefit of
Incremental Export Incentivisation Scheme for the last quarter
of 2012-13 will be limited to 25% growth or Incremental
growth of Rs.10 crores in value, whichever is less. RAs should
recover excess claim over Rs.20 lakhs, if sanctioned by them.
IEIS for the whole year of 2013-14: Benefit of Incremental
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 7 of 20
Export Incentivisation Scheme for the year 2013-14 will be
limited to a scrip of a value not exceeding Rs.1 Crore per IFC.
RAs should recover excess claim over Rs.1 crore, if sanctioned
by them.”
9. It is the contention of the senior counsel for the petitioner in W.P.(C)
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No.1345/2015 that the subsequent Notification dated 25 September, 2013
cannot have any retrospective effect as is sought to be given by the
respondents including by issuing the clarification aforesaid. It is contended
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that the petitioner made exports from 1 January, 2013 to 31 January, 2013
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under the earlier Notification dated 28 December, 2012 and the incentive
which has accrued to the petitioner under the said earlier Notification dated
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28 December, 2012 cannot be taken away by the subsequent Notification
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dated 25 September, 2013 and clarification issued thereunder. Reliance in
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this regard is placed on the judgment dated 8 December, 2014 of a learned
Single Judge of this Court in W.P.(C) No.6387/2012 titled Malik Tanning
Industries Vs. Union of India .
10. The only difference in facts in the other two petitions i.e. W.P.(C)
Nos.5317/2015 & 5288/2015 is that the petitioners in those petitions were
not issued any scrips as had been issued to the petitioner in W.P.(C)
No.1345/2015 for the amount to which the petitioners claim to be entitled to
but have been issued scrips for a lesser value in accordance with the
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 8 of 20
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subsequent Notification dated 25 September, 2013.
11. The counsels for the respondents in W.P.(C) Nos.5317/2015 &
5288/2015 informs that an appeal has been preferred to the Division Bench
against the judgment in Malik Tanning Industries supra and which was
listed today and of which notice has been issued.
12. The counsels for the respondents contend that since the petitioners
have been denied the incentive to which they claim to be entitled to, for the
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reason of the Notification dated 25 September, 2013, without making a
challenge to the said Notification and which has not been made in W.P.(C)
No.1345/2015 and though made in W.P.(C) Nos.5317/2015 & 5288/2015 is
not being pressed, the petitioners are not entitled to the relief claimed. It is
stated that the petitioners are merely challenging the Clarification issued and
without challenging the Notification, the challenge to the Clarification issued
is of no avail.
13. I am unable to agree. In my opinion, the petitioners have no need to
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challenge the subsequent Notification dated 25 September, 2013. The
claim of the petitioners is that their entitlement under the earlier Notification
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dated 28 December, 2012 remains unaffected by the subsequent
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Notification dated 25 September, 2013 which cannot have any retrospective
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 9 of 20
operation. The counsel for the petitioner in W.P.(C) No.5288/2015 has in
this regard also drawn attention to the judgment of the Division Bench of
this Court in Agri Trade India Services Pvt. Ltd. Vs. Union of India 2006
(204) E.L.T. 161 (Delhi) laying down that in the absence of a specific
power, the delegatee cannot retrospectively legislate. It is contended that
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thus the claims of the petitioners under the earlier Notification dated 28
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December, 2012 remain unaffected by the subsequent Notification dated 25
September, 2013.
14. The counsel for the respondents in W.P.(C) No.5288/2015 has drawn
attention to the judgment of the Division Bench of Gujarat High Court in
Adani Exports Limited Vs. Union of India 2004 LawSuit(Gujarat) 445 to
contend that it was held therein that if a scheme is being abused or misused,
the Government can always exercise power to amend the same. It is
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contended that the incentive introduced vide the Notification dated 28
December, 2012 was also being abused / misused by incrementing the
exports to own companies without any actual increase in exports, merely to
claim the incentive. It is further contended that the increase in exports
across the board was of 5% only, however to claim incentive increase in
exports was claimed to be of more than 20% and which is clear evidence of
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 10 of 20
abuse.
15. The counsel for the respondent DGFT in W.P.(C) No.5317/2015 has
also contended that if the petitioners are aggrieved from non-grant of the
incentive claimed, the remedy of appeal under Section 9(5) read with
Section 15 of the Act is available. However, on enquiry, whether not the
Appellate Authority would not be bound by the Clarifications issued and
thus what purpose the appeal would serve, the counsel has fairly not chosen
to controvert.
16. The counsel for the respondents in W.P.(C) No.1345/2015 contends
that the Central Government is empowered to amend the policy and the
DGFT is empowered to apply and interpret the policy and if any doubt or
question arises in respect of the interpretation of any provision of FTP or in
the matter of classification of any item, the said doubt is to be referred to the
DGFT whose decision shall be final and binding. Reliance in this regard is
placed on Atul Commodities Private Limited Vs. Commissioner of
Customs, Cochin 9 (2009) 5 SCC 46.
17. I have considered the aforesaid contentions.
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18. I may at the outset state that in view of the Notification dated 31
July, 2013 supra of the Registrar of this Court clarifying that challenge to a
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 11 of 20
policy is not to be treated as a challenge to the vires of the Act, Rules and
Regulations required to be considered by the Division Bench as per the
Roster of this Court, this Bench would be competent to go into the question
also of the challenge if any required to be considered to the Notification
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dated 25 September, 2013 supra of the Government of India in exercise of
powers under Section 5 of the FTDR Act. Section 5 of the FTDR Act
empowers the Central government to from time to time formulate and
announce by notification in the Official Gazette the foreign trade policy and
to in like manner amend that Policy. In exercise of the said power, the
Central Government has framed the FTP 2009-2014 and which Policy was
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amended vide Notifications dated 28 December, 2012 and 25 September,
2013 supra. The said Notifications being but a change brought about by the
Central Government in the Policy, if the petitioners are to be found to be
entitled to the relief claimed and being found disentitled thereto owing to the
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Notification dated 25 September, 2013 and if the said Notification dated
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25 September, 2013 was to be found to be contrary to law and / or violative
of Article 14 of the Constitution of India, this Bench would be competent to
hold the amendment to the Policy brought about by the Notification dated
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25 September, 2013, to be bad.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 12 of 20
19. A Co-ordinate Bench of this Court in Malik Tanning Industries supra
was concerned with a challenge to a policy circular of the DGFT having the
effect of excluding the products exported by the petitioners therein from the
definition of technical textiles, thereby rendering the petitioners therein
ineligible for claiming the incentive available under the Focus Product
Scheme. It was inter alia the contention of the petitioners therein that the
impugned circular sought to take away the benefits that had already been
availed and utilized by the petitioners and which were, pursuant to the
impugned circular, sought to be recovered back from the petitioners. This
Court held, (i) that though DGFT is entitled to clarify a doubt as to the
classification but the entry in question was unambiguous and the purpose of
the impugned circular was not clarificatory but to curtail the number of
products which would be eligible for the export incentive; (ii) that the power
granted to DGFT for clarifying any question and doubts with regard to the
entries cannot be used to provide a definition where the entry itself is not
ambiguous; (iii) that the impugned circular therefore brought about the
substantive change as it restricted the scope of the Focus Product Scheme in
respect to technical textiles as envisioned under the FTP; (iv) that as per
Section 5 of the FTDR Act, a policy cannot be made with retrospective
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 13 of 20
effect; reliance in this regard was placed on Union of India Vs. Asian Food
Industries (2006) 13 SCC 542; (v) that the power exercised by the Central
Government is a power delegated by the Legislation and it is well settled
that in the absence of an express provision enabling a delegate to make
delegated Legislation with retrospective effect, no such power can be
inferred; (vi) that Section 5 of the FTDR Act does not empower the Central
Government to frame policy with retrospective effect; (vii) that thus the
schemes framed under the FTP cannot be altered or amended with
retrospective effect; reliance was also placed on Mahabir Vegetables Oils
(P) Ltd. Vs. State of Haryana (2006) 3 SCC 620.
20. The Division Bench of this Court in Agri Trade India Services Pvt.
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Ltd. supra was concerned with the challenge to a Notification dated 4 July,
2006 of the Central Government purporting to amend the earlier Notification
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dated 27 June, 2006 and thereby prohibiting the export of certain goods
which was permissible under the earlier Notification and adversely affecting
the contractual and property rights and obligations which had already
accrued. It was held that Section 5 of the FTDR Act does not empower the
Central Government to give retrospective effect to a Notification issued
under that provision.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 14 of 20
21. Applying the aforesaid law, it follows that the Central Government, in
exercise of powers under Section 5 of the FTDR Act, could not by
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Notification dated 25 September, 2013 take away the entitlement if any
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already accrued under the Notification dated 28 December, 2012. The
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same would amount to giving the Notification dated 25 September, 2013 a
retrospective effect and which has been held to be impermissible.
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22. In the present case, while the earlier Notification dated 28 December,
2012 entitled an IEC holder to duty credit scrip @ 2% on the incremental
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growth (achieved by the IEC holder) during the period 1 January, 2013 to
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31 March, 2013 compared to the period from 1 January, 2012 to 31
March, 2012 on the FOB value of exports, without any maximum limit of
the duty credit scrip to which an IEC holder may thereby become entitled to,
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the Notification dated 25 September, 2013 restricted / limited duty credit
scrip to which an IEC holder may become so entitled to 25% growth or
incremental growth of Rs.10 crores in value, whichever is less. Introduction
of an outer limit to the benefit, to which a person may become entitled to,
would definitely qualify as an amendment and not as a clarification. The
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earlier Notification dated 28 December, 2012 entitled an IEC holder to duty
credit scrip @ 2% on the incremental growth and which 2% could be of any
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 15 of 20
value, without any limitation whatsoever. However, vide subsequent
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Notification dated 25 September, 2013, the said duty credit scrip to which
an IEC holder could become entitled to under the earlier Notification dated
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28 December, 2012 was limited to a maximum of 25% growth or Rs.10
crores whichever is less. Introduction of a maximum limit is by way of an
amendment and can by no stretch of imagination be treated as a clarification.
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There was no ambiguity in the earlier Notification dated 28 December,
2012, as to the maximum amount to which an IEC holder may become
entitled thereunder, to require any clarification. Moreover, the Notification
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dated 25 September, 2013 itself is titled as an „amendment‟ and describes
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the effect thereof also as „amendment‟ of the earlier Notification dated 28
December, 2012.
23. As far as amendment is concerned, the view of the Division Bench of
this Court in Agri Trade India Services Pvt. Ltd. supra, binding on the
undersigned, is that the same cannot be retrospective. The amendment
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brought by the subsequent Notification dated 25 September, 2013 limiting
the benefit, earlier unlimited, to 25% growth or Rs.10 crores whichever is
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less, for the last quarter of 2012-2013 i.e. 1 January, 2013 to 31 March,
2013 and with which we are concerned, would definitely be retrospective. It
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 16 of 20
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has thus but to be held that the said amendment of 25 September, 2013
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cannot take away the benefit which has already accrued due as on 31
March, 2013.
24. Supreme Court, in Shiv Ganga Papers Pvt. Ltd. Vs. Union
Territories of Daman & Deu MANU/SC/0392/2014, held that an
explanation should only explain and clarify and if it accepts, excludes or
restricts, it is not an explanation but a proviso and should be considered as
operative only from the date of its coming into effect. It was further held
that the Notification in that case, instead of removing the ambiguity in the
earlier Notification, introduced fresh conditions bringing substantial changes
in the Notification and was thus not explanatory or clarificatory.
25. There is another aspect of the matter. Though vide Notification dated
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25 September, 2013 it was provided that the benefit given vide the
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Notification dated 28 December, 2012 would be limited to 25% growth or
incremental growth of Rs.10 crores in value, whichever is less but owing to
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Clause (ii) of the Notification dated 25 September, 2013 providing that
claims in excess of 25% growth or incremental growth of Rs.10 crores in
value will be subject to greater scrutiny by Regional Authorities, the
Regional Authorities of the respondents were of the view that the
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 17 of 20
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Notification dated 25 September, 2013 did not prohibit / bar benefit in
excess of 25% growth or incremental growth of Rs.10 crores in value and
only required claims in excess thereof to be subjected to greater scrutiny.
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The same indeed is a plausible interpretation of the Notification dated 25
September, 2013. It is because of this only that the necessity for the DGFT
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to issue the clarification dated 23 September, 2014 arose. What thus
follows is that even according to the respondents the claims under the
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Notification dated 28 December, 2012 in excess of the limits prescribed by
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the Notification dated 25 September, 2013 have been barred, not by the
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Notification dated 25 September, 2013, but by the clarification dated 23
September, 2014. Supreme Court in Atul Commodities Private Limited
supra relied upon by the counsel for the respondents in W.P.(C)
No.1345/2015 held (a) that there is a difference between amendment and
clarification; (b) that under the scheme of the FTDR Act, one finds a clear
demarcation between an amendatory provision and a clarificatory provision;
(c) that the power to amend FTP is exclusively vested in the Central
Government whereas the power to clarify is vested in DGFT; (d) that a
change of categorisation can be done only by an amendment under Section 5
of the Act; (e) it is not open to the DGFT to vide a circular, change
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 18 of 20
categorisation of items; (f) that under the FTP, DGFT is empowered to
interpret the policy. Thus, if it were to be said that the bar / prohibition
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against benefits accrued under Notification dated 28 December, 2012 in
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excess of the limits prescribed in Notification dated 25 September, 2013 is
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by the clarification dated 23 September, 2014, then the same is clearly
beyond the powers of the DGFT.
26. That brings me to the judgment of the Division Bench of the High
Court in Adani Exports Limited supra relied upon by the counsel for the
respondents in W.P.(C) No.5288/2015. A close reading of the same shows
the same to be not laying down that an incentive introduced and accrued can
be taken away retrospectively, if found to have accrued by abuse/misuse of
the policy/scheme. I am afraid the counsel is misreading the judgment. The
Division bench in Para 21 of the judgment has clearly observed that the
amendments to the Scheme under consideration in that case were “not
having retrospective effect” and were at the most “retroactive”. It is further
mentioned in the said paragraph of the judgment “hence none of the
principles against retrospectivity will apply in the instant case.” Rather, the
contention of the petitioners therein was that amendments were taking away
“vested rights”. A vested right is different from an accrued right. It was in
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 19 of 20
the context of rights given under a Policy and which were subsequently
withdrawn that it was held that where the overwhelming public interest so
demands, the legislation / subordinate legislation may have to be allowed to
take away „future benefits promised in the past‟. It is thus not as if the
decision therein is contrary to the view of the Division bench of this Court in
Agri Trade India Services Pvt. Ltd. supra.
27. The petitions thus but have to be allowed and are allowed.
28. The petitioners are held entitled to what they may have been entitled
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to under the Notification dated 28 December, 2012 and without any cap
and / or maximum limit. The decision of the respondents denying such
benefit to the petitioners are quashed / set aside and the respondents are
directed to issue the duty credit scrip to the petitioners in terms of the
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Notification dated 28 December, 2012 on or before 31 January, 2016.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 28, 2015
bs/gsr..
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(corrected & released on 28 November, 2015)
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 20 of 20
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% Date of decision: 28 September, 2015.
+ W.P.(C) 1345/2015
M/S. SESA STERLITE LIMITED ..... Petitioner
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
Manish Garg, Mr. Akshay Bhardwaj,
Ms. Shreya Dahiya and Ms. Reena,
Advs.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Neeraj Jain and Mr. Kavindra
Gill, Advs. for R-1 to 3/UOI.
AND
+ W.P.(C) 5317/2015
KONARK EXIM PVT. LTD. ..... Petitioner
Through: Dr. G.K. Sarkar, Ms. Malabika Sarkar
and Mr. Prashant Srivastava, Advs.
Versus
DIRECTORATE GENERAL OF
FOREIGN TRADE ..... Respondent
Through: Mr. Sanjeev Narual, CGSC with Mr.
Ajay Kalra, Ms. Meha Rashmi and
Mr. Anshuman, Advs. for UOI.
AND
+ W.P.(C) 5288/2015
K.S. COMMODITIES PVT. LTD AND ANR. ..... Petitioners
Through: Mr. Vinod Mehta, Adv.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Manik Dogra, Ms. Nitya and Ms.
Nidhi Parashar, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. These petitions are being listed together and have been taken up
together for hearing today also.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 1 of 20
2. The counsel for the respondents in W.P.(C) No.5288/2015 seek
opportunity to file counter affidavit which has not been filed till date.
3. I am however not inclined to give any opportunity for filing the
counter affidavit as sought inasmuch as the respondents are the same in all
the petitions and counter affidavits have been filed in other two petitions.
Moreover, enough opportunity has already been given for filing the counter
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affidavit and these matters have been listed today for hearing, from 24
September, 2015, on which date no such request was made.
4. The counsels for the respondents Directorate General of Foreign
Trade (DGFT) in W.P.(C) Nos.5317/2015 & 5288/2015 state that the
challenge in these petitions is to a Notification and thus the matter is to be
considered by the Division Bench of this Court.
5. The senior counsel for the petitioner in W.P.(C) No.1345/2015 states
that the challenge is not to any Notification to require consideration by the
Division Bench of this Court. The counsels for the petitioners in W.P.(C)
Nos.5317/2015 & 5288/2015 state that though the prayer paragraphs in their
petitions may have been differently worded but the challenge made by them
and pressed by them also before this Court is not to any Notification and
even if reads so, be treated as the challenge as made in W.P.(C)
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 2 of 20
No.1345/2015.
6. In this view of the matter, the counsels have been heard. I may in this
st
regard also notice that the Registry of this Court vide Notification dated 31
July, 2013 has also clarified that though writ petitions challenging
constitutional validity of any Act, Rules or Regulations are to be listed
before the Division Bench dealing with that subject but challenge to a
policy, scheme or guideline is not to be treated as a challenge to the vires of
the Act, Rules or Regulations.
7. The senior counsel for the petitioner in W.P.(C) No.1345/2015 has
th
drawn attention to the Notification No.27(RE-2012)/2009-2014 dated 28
December, 2012 of the Ministry of Commerce & Industry, Govt. of India
issued in exercise of powers under Section 5 of the Foreign Trade
(Development and Regulation) (FTDR) Act, 1992 read with para 2.1 of
Foreign Trade Policy (FTP), 2009-2014 making amendments to the FTP
2009-2014 with immediate effect. By the said amendment, a new paragraph
was added at the end of para 3.14.3 of FTP 2009-2014 as para 3.14.4 and
which para 3.14.4 is as under:
“3.14.4 Incremental Exports Incentivisation
Scheme
Objective (a) The objective of the Scheme is to
incentivize incremental exports.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 3 of 20
Entitlement (b) An IEC holder would be entitled for a
duty credit scrip @ 2% on the incremental
growth (achieved by the IEC holder) during
the period 01.01.2013 to 31.3.2013
compared to the period from 01.01.2012 to
31.3.2012 on the FOB value of exports.
Incremental growth shall be in respect of
each exporter (IEC holder) without any
scope for combining the exports for Group
Company.
(c) Incentive will be admissible only if the
IEC holder has achieved growth in the
financial year 2012-2013 vis a vis financial
year 2011-2012. Quantum of benefit will be
calculated on the incremental growth
achieved subject to eligibility criteria given
in para 3.14.4(d) of FTP 2009-014.
Eligibility Criteria (d) For the purpose of the scheme, export
performance shall not be allowed to be
transferred from any other IEC holder.
Benefit under this scheme will not be
allowed to an exporter who had made no
export between 01/01/12 to 31/03/12. The
following exports shall not be taken into
account for calculation of export
performance or for computation of
entitlement under the Scheme:
(i) Export of imported goods or exports
made through trans-shipment.
(ii) Export from SEZ / EOU / EHTP /
STPI / BTP / FTWZ.
(iii) Deemed Exports
(iv) Service Exports
(v) Third Party exports
(vi) Diamond, Gold, Silver, Platinum,
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 4 of 20
other precious metal in any form
including plain and studded jewellery
and other precious and semi-precious
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 / petr5oleum oil and crude /
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 of 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 3.17.10 (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
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 5 of 20
3.17.5 of FTP 2009-14.”
th
The Notification dated 28 December, 2012 also adds the following at
the end of para 3.17.8 of FTP 2009-2014:
“Benefit under para 3.14.4 of FTP will not be covered under
this para”
And under the heading Effect of this Notification provides as under:
“Effect of this Notification: The Scheme to incentivize
incremental exports is being notified.”
th
8. It is the case of the petitioner in W.P.(C) No.1345/2015 that it, on 26
July, 2013, made a claim under the aforesaid amendment, of the value of
Rs.10,95,83,585.60 paise and the necessary incentive scrips were issued to it
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on 19 March, 2014 but the same were lost by it necessitating it to apply to
the respondents for issuance of duplicate scrip and which have been denied
to the petitioner. The duplicate scrips have been denied to the petitioner
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because of a Notification No.44(RE-2013)/2009-2014 dated 25 September,
2013 of the Govt. of India, again in exercise of powers under Section 5 of
the FTDR Act, further amending Chapter 3 of the FTP 2009-2014 by
inserting the following paragraphs (i) & (ii) below paragraph 3.14.4.(c)
inserted by the earlier Notification, as under:
“(i) Benefit of Incremental Export Incentivisation Scheme for
the last quarter of 2012-13 will be limited to 25% growth
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 6 of 20
or Incremental growth of Rs.10 crores in value,
whichever is less.
(ii) Claims in excess of this value will be subjected to greater
scrutiny by Regional Authority.”
The effect of the Notification mentioned is as under:
“Effect of this Notification: Few amendments have been
made in Notification No.27 dated 28.12.2012 for claiming
benefit of Incremental Export Incentivisation Scheme.”
rd
And because of clarification dated 23 September, 2014 issued by the
respondent Directorate General of Foreign Trade (DGFT) clarifying that
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sub-paragraphs (i) & (ii) aforesaid added vide Notification dated 25
September, 2013 below paragraph 3.14.4(c)
“are independent paras in both the Notifications Nos. 44 and
43 dated 25.09.2013. The limiting of claim is clearly mentioned
in the first sub-para of both notifications which fixes the upper
limit of grant of benefit. The second sub-para in both the
notifications only directs RAs to exercise caution while dealing
with cases of incremental growth of exports under the scheme.
It does not entitle any applicant to higher levels of benefits
under the scheme.”
and directing that entitlement under the scheme be computed as
under:
“ IEIS for the last quarter of 2012-13: Benefit of
Incremental Export Incentivisation Scheme for the last quarter
of 2012-13 will be limited to 25% growth or Incremental
growth of Rs.10 crores in value, whichever is less. RAs should
recover excess claim over Rs.20 lakhs, if sanctioned by them.
IEIS for the whole year of 2013-14: Benefit of Incremental
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 7 of 20
Export Incentivisation Scheme for the year 2013-14 will be
limited to a scrip of a value not exceeding Rs.1 Crore per IFC.
RAs should recover excess claim over Rs.1 crore, if sanctioned
by them.”
9. It is the contention of the senior counsel for the petitioner in W.P.(C)
th
No.1345/2015 that the subsequent Notification dated 25 September, 2013
cannot have any retrospective effect as is sought to be given by the
respondents including by issuing the clarification aforesaid. It is contended
st st
that the petitioner made exports from 1 January, 2013 to 31 January, 2013
th
under the earlier Notification dated 28 December, 2012 and the incentive
which has accrued to the petitioner under the said earlier Notification dated
th
28 December, 2012 cannot be taken away by the subsequent Notification
th
dated 25 September, 2013 and clarification issued thereunder. Reliance in
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this regard is placed on the judgment dated 8 December, 2014 of a learned
Single Judge of this Court in W.P.(C) No.6387/2012 titled Malik Tanning
Industries Vs. Union of India .
10. The only difference in facts in the other two petitions i.e. W.P.(C)
Nos.5317/2015 & 5288/2015 is that the petitioners in those petitions were
not issued any scrips as had been issued to the petitioner in W.P.(C)
No.1345/2015 for the amount to which the petitioners claim to be entitled to
but have been issued scrips for a lesser value in accordance with the
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 8 of 20
th
subsequent Notification dated 25 September, 2013.
11. The counsels for the respondents in W.P.(C) Nos.5317/2015 &
5288/2015 informs that an appeal has been preferred to the Division Bench
against the judgment in Malik Tanning Industries supra and which was
listed today and of which notice has been issued.
12. The counsels for the respondents contend that since the petitioners
have been denied the incentive to which they claim to be entitled to, for the
th
reason of the Notification dated 25 September, 2013, without making a
challenge to the said Notification and which has not been made in W.P.(C)
No.1345/2015 and though made in W.P.(C) Nos.5317/2015 & 5288/2015 is
not being pressed, the petitioners are not entitled to the relief claimed. It is
stated that the petitioners are merely challenging the Clarification issued and
without challenging the Notification, the challenge to the Clarification issued
is of no avail.
13. I am unable to agree. In my opinion, the petitioners have no need to
th
challenge the subsequent Notification dated 25 September, 2013. The
claim of the petitioners is that their entitlement under the earlier Notification
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dated 28 December, 2012 remains unaffected by the subsequent
th
Notification dated 25 September, 2013 which cannot have any retrospective
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 9 of 20
operation. The counsel for the petitioner in W.P.(C) No.5288/2015 has in
this regard also drawn attention to the judgment of the Division Bench of
this Court in Agri Trade India Services Pvt. Ltd. Vs. Union of India 2006
(204) E.L.T. 161 (Delhi) laying down that in the absence of a specific
power, the delegatee cannot retrospectively legislate. It is contended that
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thus the claims of the petitioners under the earlier Notification dated 28
th
December, 2012 remain unaffected by the subsequent Notification dated 25
September, 2013.
14. The counsel for the respondents in W.P.(C) No.5288/2015 has drawn
attention to the judgment of the Division Bench of Gujarat High Court in
Adani Exports Limited Vs. Union of India 2004 LawSuit(Gujarat) 445 to
contend that it was held therein that if a scheme is being abused or misused,
the Government can always exercise power to amend the same. It is
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contended that the incentive introduced vide the Notification dated 28
December, 2012 was also being abused / misused by incrementing the
exports to own companies without any actual increase in exports, merely to
claim the incentive. It is further contended that the increase in exports
across the board was of 5% only, however to claim incentive increase in
exports was claimed to be of more than 20% and which is clear evidence of
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 10 of 20
abuse.
15. The counsel for the respondent DGFT in W.P.(C) No.5317/2015 has
also contended that if the petitioners are aggrieved from non-grant of the
incentive claimed, the remedy of appeal under Section 9(5) read with
Section 15 of the Act is available. However, on enquiry, whether not the
Appellate Authority would not be bound by the Clarifications issued and
thus what purpose the appeal would serve, the counsel has fairly not chosen
to controvert.
16. The counsel for the respondents in W.P.(C) No.1345/2015 contends
that the Central Government is empowered to amend the policy and the
DGFT is empowered to apply and interpret the policy and if any doubt or
question arises in respect of the interpretation of any provision of FTP or in
the matter of classification of any item, the said doubt is to be referred to the
DGFT whose decision shall be final and binding. Reliance in this regard is
placed on Atul Commodities Private Limited Vs. Commissioner of
Customs, Cochin 9 (2009) 5 SCC 46.
17. I have considered the aforesaid contentions.
st
18. I may at the outset state that in view of the Notification dated 31
July, 2013 supra of the Registrar of this Court clarifying that challenge to a
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 11 of 20
policy is not to be treated as a challenge to the vires of the Act, Rules and
Regulations required to be considered by the Division Bench as per the
Roster of this Court, this Bench would be competent to go into the question
also of the challenge if any required to be considered to the Notification
th
dated 25 September, 2013 supra of the Government of India in exercise of
powers under Section 5 of the FTDR Act. Section 5 of the FTDR Act
empowers the Central government to from time to time formulate and
announce by notification in the Official Gazette the foreign trade policy and
to in like manner amend that Policy. In exercise of the said power, the
Central Government has framed the FTP 2009-2014 and which Policy was
th th
amended vide Notifications dated 28 December, 2012 and 25 September,
2013 supra. The said Notifications being but a change brought about by the
Central Government in the Policy, if the petitioners are to be found to be
entitled to the relief claimed and being found disentitled thereto owing to the
th
Notification dated 25 September, 2013 and if the said Notification dated
th
25 September, 2013 was to be found to be contrary to law and / or violative
of Article 14 of the Constitution of India, this Bench would be competent to
hold the amendment to the Policy brought about by the Notification dated
th
25 September, 2013, to be bad.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 12 of 20
19. A Co-ordinate Bench of this Court in Malik Tanning Industries supra
was concerned with a challenge to a policy circular of the DGFT having the
effect of excluding the products exported by the petitioners therein from the
definition of technical textiles, thereby rendering the petitioners therein
ineligible for claiming the incentive available under the Focus Product
Scheme. It was inter alia the contention of the petitioners therein that the
impugned circular sought to take away the benefits that had already been
availed and utilized by the petitioners and which were, pursuant to the
impugned circular, sought to be recovered back from the petitioners. This
Court held, (i) that though DGFT is entitled to clarify a doubt as to the
classification but the entry in question was unambiguous and the purpose of
the impugned circular was not clarificatory but to curtail the number of
products which would be eligible for the export incentive; (ii) that the power
granted to DGFT for clarifying any question and doubts with regard to the
entries cannot be used to provide a definition where the entry itself is not
ambiguous; (iii) that the impugned circular therefore brought about the
substantive change as it restricted the scope of the Focus Product Scheme in
respect to technical textiles as envisioned under the FTP; (iv) that as per
Section 5 of the FTDR Act, a policy cannot be made with retrospective
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 13 of 20
effect; reliance in this regard was placed on Union of India Vs. Asian Food
Industries (2006) 13 SCC 542; (v) that the power exercised by the Central
Government is a power delegated by the Legislation and it is well settled
that in the absence of an express provision enabling a delegate to make
delegated Legislation with retrospective effect, no such power can be
inferred; (vi) that Section 5 of the FTDR Act does not empower the Central
Government to frame policy with retrospective effect; (vii) that thus the
schemes framed under the FTP cannot be altered or amended with
retrospective effect; reliance was also placed on Mahabir Vegetables Oils
(P) Ltd. Vs. State of Haryana (2006) 3 SCC 620.
20. The Division Bench of this Court in Agri Trade India Services Pvt.
th
Ltd. supra was concerned with the challenge to a Notification dated 4 July,
2006 of the Central Government purporting to amend the earlier Notification
th
dated 27 June, 2006 and thereby prohibiting the export of certain goods
which was permissible under the earlier Notification and adversely affecting
the contractual and property rights and obligations which had already
accrued. It was held that Section 5 of the FTDR Act does not empower the
Central Government to give retrospective effect to a Notification issued
under that provision.
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 14 of 20
21. Applying the aforesaid law, it follows that the Central Government, in
exercise of powers under Section 5 of the FTDR Act, could not by
th
Notification dated 25 September, 2013 take away the entitlement if any
th
already accrued under the Notification dated 28 December, 2012. The
th
same would amount to giving the Notification dated 25 September, 2013 a
retrospective effect and which has been held to be impermissible.
th
22. In the present case, while the earlier Notification dated 28 December,
2012 entitled an IEC holder to duty credit scrip @ 2% on the incremental
st
growth (achieved by the IEC holder) during the period 1 January, 2013 to
st st st
31 March, 2013 compared to the period from 1 January, 2012 to 31
March, 2012 on the FOB value of exports, without any maximum limit of
the duty credit scrip to which an IEC holder may thereby become entitled to,
th
the Notification dated 25 September, 2013 restricted / limited duty credit
scrip to which an IEC holder may become so entitled to 25% growth or
incremental growth of Rs.10 crores in value, whichever is less. Introduction
of an outer limit to the benefit, to which a person may become entitled to,
would definitely qualify as an amendment and not as a clarification. The
th
earlier Notification dated 28 December, 2012 entitled an IEC holder to duty
credit scrip @ 2% on the incremental growth and which 2% could be of any
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 15 of 20
value, without any limitation whatsoever. However, vide subsequent
th
Notification dated 25 September, 2013, the said duty credit scrip to which
an IEC holder could become entitled to under the earlier Notification dated
th
28 December, 2012 was limited to a maximum of 25% growth or Rs.10
crores whichever is less. Introduction of a maximum limit is by way of an
amendment and can by no stretch of imagination be treated as a clarification.
th
There was no ambiguity in the earlier Notification dated 28 December,
2012, as to the maximum amount to which an IEC holder may become
entitled thereunder, to require any clarification. Moreover, the Notification
th
dated 25 September, 2013 itself is titled as an „amendment‟ and describes
th
the effect thereof also as „amendment‟ of the earlier Notification dated 28
December, 2012.
23. As far as amendment is concerned, the view of the Division Bench of
this Court in Agri Trade India Services Pvt. Ltd. supra, binding on the
undersigned, is that the same cannot be retrospective. The amendment
th
brought by the subsequent Notification dated 25 September, 2013 limiting
the benefit, earlier unlimited, to 25% growth or Rs.10 crores whichever is
st st
less, for the last quarter of 2012-2013 i.e. 1 January, 2013 to 31 March,
2013 and with which we are concerned, would definitely be retrospective. It
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 16 of 20
th
has thus but to be held that the said amendment of 25 September, 2013
st
cannot take away the benefit which has already accrued due as on 31
March, 2013.
24. Supreme Court, in Shiv Ganga Papers Pvt. Ltd. Vs. Union
Territories of Daman & Deu MANU/SC/0392/2014, held that an
explanation should only explain and clarify and if it accepts, excludes or
restricts, it is not an explanation but a proviso and should be considered as
operative only from the date of its coming into effect. It was further held
that the Notification in that case, instead of removing the ambiguity in the
earlier Notification, introduced fresh conditions bringing substantial changes
in the Notification and was thus not explanatory or clarificatory.
25. There is another aspect of the matter. Though vide Notification dated
th
25 September, 2013 it was provided that the benefit given vide the
th
Notification dated 28 December, 2012 would be limited to 25% growth or
incremental growth of Rs.10 crores in value, whichever is less but owing to
th
Clause (ii) of the Notification dated 25 September, 2013 providing that
claims in excess of 25% growth or incremental growth of Rs.10 crores in
value will be subject to greater scrutiny by Regional Authorities, the
Regional Authorities of the respondents were of the view that the
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 17 of 20
th
Notification dated 25 September, 2013 did not prohibit / bar benefit in
excess of 25% growth or incremental growth of Rs.10 crores in value and
only required claims in excess thereof to be subjected to greater scrutiny.
th
The same indeed is a plausible interpretation of the Notification dated 25
September, 2013. It is because of this only that the necessity for the DGFT
rd
to issue the clarification dated 23 September, 2014 arose. What thus
follows is that even according to the respondents the claims under the
th
Notification dated 28 December, 2012 in excess of the limits prescribed by
th
the Notification dated 25 September, 2013 have been barred, not by the
th rd
Notification dated 25 September, 2013, but by the clarification dated 23
September, 2014. Supreme Court in Atul Commodities Private Limited
supra relied upon by the counsel for the respondents in W.P.(C)
No.1345/2015 held (a) that there is a difference between amendment and
clarification; (b) that under the scheme of the FTDR Act, one finds a clear
demarcation between an amendatory provision and a clarificatory provision;
(c) that the power to amend FTP is exclusively vested in the Central
Government whereas the power to clarify is vested in DGFT; (d) that a
change of categorisation can be done only by an amendment under Section 5
of the Act; (e) it is not open to the DGFT to vide a circular, change
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 18 of 20
categorisation of items; (f) that under the FTP, DGFT is empowered to
interpret the policy. Thus, if it were to be said that the bar / prohibition
th
against benefits accrued under Notification dated 28 December, 2012 in
th
excess of the limits prescribed in Notification dated 25 September, 2013 is
rd
by the clarification dated 23 September, 2014, then the same is clearly
beyond the powers of the DGFT.
26. That brings me to the judgment of the Division Bench of the High
Court in Adani Exports Limited supra relied upon by the counsel for the
respondents in W.P.(C) No.5288/2015. A close reading of the same shows
the same to be not laying down that an incentive introduced and accrued can
be taken away retrospectively, if found to have accrued by abuse/misuse of
the policy/scheme. I am afraid the counsel is misreading the judgment. The
Division bench in Para 21 of the judgment has clearly observed that the
amendments to the Scheme under consideration in that case were “not
having retrospective effect” and were at the most “retroactive”. It is further
mentioned in the said paragraph of the judgment “hence none of the
principles against retrospectivity will apply in the instant case.” Rather, the
contention of the petitioners therein was that amendments were taking away
“vested rights”. A vested right is different from an accrued right. It was in
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 19 of 20
the context of rights given under a Policy and which were subsequently
withdrawn that it was held that where the overwhelming public interest so
demands, the legislation / subordinate legislation may have to be allowed to
take away „future benefits promised in the past‟. It is thus not as if the
decision therein is contrary to the view of the Division bench of this Court in
Agri Trade India Services Pvt. Ltd. supra.
27. The petitions thus but have to be allowed and are allowed.
28. The petitioners are held entitled to what they may have been entitled
th
to under the Notification dated 28 December, 2012 and without any cap
and / or maximum limit. The decision of the respondents denying such
benefit to the petitioners are quashed / set aside and the respondents are
directed to issue the duty credit scrip to the petitioners in terms of the
th st
Notification dated 28 December, 2012 on or before 31 January, 2016.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 28, 2015
bs/gsr..
th
(corrected & released on 28 November, 2015)
W.P.(C) Nos.1345/2015, 5317/2015 & 5288/2015 Page 20 of 20