Director General of Foreign Trade and Another Vs. M/s. Kanak Exports and Another
[Civil Appeal No. 554 of 2006]
[Civil Appeal No. 658 of 2006]
[Civil Appeal No. 1587 of 2006]
[Civil Appeal No. 1589 of 2006]
[Transfer Case (Civil) No. 32 of 2007]
[Transfer Case (Civil) No. 33 of 2007]
[Transfer Case (Civil) No. 36 of 2007]
[Transfer Case (Civil) No. 1 of 2008]
[Transfer Case (Civil) No. 3 of 2008]
[Writ Petition (Civil) No. 27 of 2008]
[Transfer Case (Civil) No. 49 of 2009]
[Writ Petition (Civil) No. 343 of 2009]
[Writ Petition (Civil) No. 246 of 2010]
[Transfer Case (Civil) No. of 2015 Arising Out of Transfer Petition (Civil) No. 568 of 2014]
A.K. SIKRI, J.
Civil Appeal No. 554 of 2006 Civil Appeal No. 658 of 2006 Civil Appeal No. 1587 of 2006 Civil Appeal No. 1589 of 2006 Transfer Case (Civil) No. 36 of 2007 Transfer Case (Civil) No. 1 of 2008 Transfer Case (Civil) No. 3 of 2008 Transfer Case (Civil) No. 49 of 2009 Writ Petition (Civil) No. 343 of 2009 Writ Petition (Civil) No. 246 of 2010 Export Import (EXIM) Policy 2002-2007 was framed by the Central Government under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the 'Act'), which came into force with effect from April 01, 2003. The main purpose and objective of this Policy was to boost the exports.
In furtherance of the same, a Special Scheme containing the provisions thereof was incorporated therein which gave certain kind of incentives to the exporters of some specified items. However, some amendments were made thereto vide Notification No. 28 dated January 28, 2004. On the same day, Public Notice No. 40(RE-2003)/2002-2007 was also issued in exercise of powers conferred under the provisions of Para 2.4 of the said Policy, which was followed by Notification No. 38 dated April 21, 2004 and Notification No. 40 dated April 23, 2004. Vide Notification No. 28 dated January 28, 2004, the Central Government sought to amend certain provisions of the EXIM Policy by inserting Notes 1 to 5, which was unpalatable to the exporters of the goods mentioned therein as, according to them, under the guise of the said Notes, some benefits which had already accrued to these exporters under the EXIM Policy were taken away.
Vide Public Notice dated January 28, 2004, the Government announced exclusion of export performance in relation to four classes of goods mentioned in para 2 thereof from computation of the entitlement under the Scheme and, at the same time, sought to disallow the import of agricultural products falling under Chapters I to XXIV of ITC (HS) under the said scheme. Thereafter, Notification No. 38 dated April 21, 2004 was published under Section 5 of the Act on the same lines on which Public Notice dated January 28, 2004 was issued. The exporters of these goods, naturally, felt aggrieved thereby.
There was an innocuous amendment to Notification No. 38 dated April 21, 2004 wherein in addition to the Director General of Foreign Trade (for short, 'DGFT') as an Officer to enforce these Notifications, ex-officio Additional Secretary to the Government of India was also added. All such exporters who were affected thereby filed writ petitions in various High Courts, particulars whereof shall be taken note of hereinafter at the appropriate stage. The Bombay High Court in Writ Petition No. 2397 of 2004, decided on July 04, 2005, has given partial relief to the exporters/ writ petitioners. The Gujarat High Court has substantially affirmed the validity of these Notifications while giving relief on one particular aspect.
Insofar as judgments of Bombay High Court and Gujarat High Court are concerned, both the Union of India as well as the writ petitioners preferred Special Leave Petitions, in which leave was granted, and these are now converted as Civil Appeal No. 658 of 2006 and Civil Appeal 554 of 2006 respectively. That apart, the Single Judge of the Gujarat High Court in one of the cases dismissed the writ petition and the LPA was filed by the said petitioner before the Division Bench of the High Court. Since the issue involved in these appeals is the same, which is raised in the LPA in the Gujarat High Court and still pending in the writ petitions filed in various High Courts, transfer petitions were filed by the Union of India seeking transfer of all those cases and to be heard along with these two appeals.
Those transfer petitions were allowed. This is how all these cases are bunched together and heard simultaneously as the issue is substantially the same in all these matters. With this background reflecting the nature of these cases, we now proceed to discuss the main provision of the EXIM Policy and how the aforesaid Notifications have amended the provisions of that Policy. That would give an indication as to what kind of grievance is raised by these exporters in challenging the validity of these Notifications. The Act was passed to provide for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from India and for matters connected therewith or incidental thereto.
The Statement of Objects and Reasons of this Act stipulates that foreign trade is the driving force of economic activity. Technology, investment and production are becoming increasingly interdependent upon each other and foreign trade brings these elements together and spurs economic growth. The Imports and Exports (Control) Act, 1947 was made in different circumstances. Although it has been amended from time to time, the Act does not provide an adequate legal framework for the development and promotion of India's foreign trade. Besides, in July, 1991 and August, 1991, major changes in trade policy were made by the Government of India.
The goals of the new trade policy are to increase productivity and competitiveness and to achieve a strong export performance. The Exports and Import Policy is a vital part of trade policy. The basic law governing foreign trade must serve as an instrument to create an environment that will provide a strong impetus to exports, facilitate imports and render export activity more profitable. It has, therefore, been considered necessary to enact a new law repealing the existing law. The Act intends to achieve these objectives.
In order to achieve the aforesaid objectives, power is given to the Central Government under Section 3 of the Act to make provisions relating to imports and exports with primary focus on the development and regulation of foreign trade. Further, Section 5 specifically empowers the Central Government to formulate and announce the EXIM Policy.
It reads as under:
"5. Export and import policy. - The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the export and import policy and may also, in the like manner, amend that policy." In order to carry out the purposes of this Act, DGFT is to be appointed by the Central Government as per the provisions of Section 6 of the Act.
In addition to carrying out the purposes of this Act, DGFT is also supposed to advise the Central Government in formulation of the EXIM Policy. He is also made responsible for carrying out that Policy. However, sub-section (3) of Section 6 empowers the Central Government to give the aforesaid functions of the DGFT even to other Officer subordinate to DGFT, except for powers conferred under Sections 3, 5, 15, 16 and 19 of the Act. As already noted above, Sections 3 and 5 give certain powers to the Central Government and, therefore, these powers have to be exercised by the Central Government only and cannot be delegated to DGFT or an Officer subordinate to him. Sections 15 and 16 relate to appeal and revision which can be filed against the orders passed by the Adjudicating Authority against any person committing contravention of provisions of the Act, Rules, Orders and EXIM Policy. Appeal lies to DGFT if the Adjudicating Authority, who passes the order, is an Officer subordinate to DGFT.
In those cases, where the Adjudicating Officer is DGFT himself, appeal lies to the Central Government. Under Sections 16, revisionary powers are conferred upon the Central Government. These powers of appeal and revision also cannot be delegated by virtue of Section 6(3) of the Act. Section 19 again confers power upon the Central Government to make Rules for carrying out the provisions of the Act generally and in respect of various matters specifically enumerated in sub-section (2) of Section 19. This power of the Central Government also cannot be delegated. It may be noted that under Section 5 of the Act, the Central Government has been formulating EXIM Policies from time to time. The Policy with which we are concerned is the EXIM Policy for the period 2002-2007, which was substituted by EXIM Policy 2004-2009.
EXIM Policy of 2002-2007 was announced and came into force from April 01, 2002. Amendment to this Policy was notified on March 31, 2003 and the revised edition of the Policy was to come into force from April 01, 2003. Even though the Central Government is generally entitled and empowered to carry out amendments in this Policy from time to time, in the EXIM Policy 2002-2007, such a right was specifically reserved stating that 'however, the Central Government reserves the right in public interest to make any amendments to this Policy in exercise of powers conferred by Section 5 of the Act'. It was also mentioned that such amendments would be made by means of a notification published in the Gazette of India.
Chapter I of the Policy, which gives 'Introduction', had made transitional arrangements vide para 1.2 thereof clarifying that any notifications made or public notices issued or anything done under the provisions of EXIM Policy and in force immediately before the commencement of the said Policy shall continue to be in force, insofar as those notifications, etc. are not in consistent with the provisions of the instant Policy. It was also clarified that licences/certificates/permissions issued under the earlier Policy would continue to be followed for the purpose for which such licences/certificates/permissions were issued, unless otherwise stipulated. Para 1.4 enshrines the objectives which led to formulation of such a Policy and reads as under:
"1.4 The principal objectives of this Policy are:
(i) To facilitate sustained growth in exports to attain a share of at least 1% of global merchandise trade.
(ii) To stimulate sustained economic growth by providing access to essential raw materials, intermediates, components, consumables and capital goods required for augmenting production and providing services.
(iii) To enhance the technological strength and efficiency of Indian agriculture, industry and services, thereby improving their competitive strength while generating new employment opportunities, and to encourage the attainment of internationally accepted standards of quality.
(iv) To provide consumers with good quality goods and services at internationally competitive prices while at the same time creating a level playing field for the domestic producers."
Keeping in mind the aforesaid principal objectives, para 2.1 made it clear that exports and imports shall be free, except in cases where they are regulated by the provisions of the said Policy or any other law for the time being in force. As per para 2.4, DGFT was authorised to specify the procedure which needs to be followed by an exporter or importer or by any licencee or other competent authority for the purposes of implementing the provisions of the Act, the Rules and the Orders made therein and this Policy. Such a procedure was to be stipulated and included in the Handbook (Volume-I), Handbook (Volume-II), Schedule of DEPB and in ITC (HS) and published by means of a public notice. It was permissible to amend this procedure from time to time. Another provision of this Policy which needs to be noticed is para 2.34 that pertains to 'third party exports' and reads as under:
"2.34 Third party exports, as defined in paragraph 9.55 shall be allowed under the Policy." Since the third party exports are to be allowed, as defined in para 9.55, we reproduce herein the said para as well: ""Third-party exports" means exports made by an exporter or manufacturer on behalf of another exporter(s).
In such cases, shipping bills shall indicate the name of both the exporter/ manufacturer and exporter(s)." Registration by importer or exporter is needed to avail the benefits of this Policy and provision in this respect is contained in para 2.44 mentioning about the Registration-cum-Membership Certificate, which reads as under:
"2.44 Any person, applying for
(i) a licence/ certificate/permission to import/export, [except items listed as restricted items in ITC (HS)] or
(ii) any other benefit or concession under this policy shall be required to furnish Registration-cum- Membership Certificate (RCMC) granted by the competent authority in accordance with the procedure specified in the Handbook (Vol.I) unless specifically exempted under the Policy."
Chapter III of the EXIM Policy deals with 'Promotional Measures' which are to be undertaken to achieve the objective of the Policy. Apart from various other measures stipulated therein, with which we are not concerned, this Chapter also deals with grant of 'Status Certificate' which is to be given to various kinds of exporters etc. who are eligible for such recognition. Categories of the exporters are mentioned therein depending upon the export performance level achieved by such export houses.
Such status holders are eligible for certain special facilities which could be availed during the validity period of the Policy, i.e. April 01, 2002 to March 31, 2007, unless otherwise specified. Since all the petitioners who filed the writ petitions have this Status Certificate, on the strength of which they are claiming the special facilities, and in their perspective the impugned notifications adversely affect the availment of these facilities, we reproduce verbatim concerned paras of the Policy touching upon this aspect:
Status Certificate
3.7.1
Merchant As Well as Manufacturer Exporters, Service Providers, Export Oriented Units (EOU's) / Units Located in Special Economic Zones (SEZ's) / Agri Export Zone (AEZ's) / Electronic Hardware Technology Parks (EHTPs) / Software Technology Parks (STPs) shall be eligible for such recognition.
Export Performance Level
3.7.2
The applicant is required to achieve the prescribed average export performance level:
Category
Total FOB/FOR during the current licencing year or during the preceding 1/2/3 licensing years (in Rupees)
Export House
45 crores
Trading House
300 crores
Star Trading House
1500 crores
Super Star Trading House
6000 crores
Note: 1.
Units in Small Scale Industry/Tiny Sector/ Cottage Sector/Units registered with KVICs or KVIBs/Units located in North Eastern States, Sikkim and J & K/Units exporting handloom, handicrafts, hand knotted carpets, silk carpets/ exporters holding golden status/exporters exporting to countries in Latin America and CIS/ sub Saharan Africa as listed in Appendix-17C, units having ISO 9000 (series)/ WHOGMP/ HACCP/SEI CMM level-II and above status granted by agencies listed in Appendix-28A, shall be entitled for export house status on achieving Rs.15 crore FOB/FOR during the current licencing year or during the preceding 1/2/3 licensing years. The same threshold limit shall be applicable to the service exporters and agri exporters (other than grains) for obtaining Export house status.
2
Export made on re-export basis shall not be counted for the purpose of recognition.
3
The exports made by a subsidiary of a limited company shall be counted towards export performance of the limited company for the purpose of recognition. For this purpose, the company shall have the majority share holding in the subsidiary company.
We now advert to the most crucial provision which entitles these Status Holders to the following benefits:
Special Strategic Package for Status Holders
3.7.2.1
The status holders shall be eligible for the following new/special facilities:
(i) Licence/certificate/permissions and Customs clearances for both imports and exports on self-declaration basis;
(ii) Fixation of Input-Output norms on priority within 60 days;
(iii) Exemption from compulsory negotiation of documents through banks. The remittance, however, would continue to be received through banking channels;
(iv) 100% retention of foreign exchange in EEFC account;
(v) Enhancement in normal repatriation period from 180 days to 360 days;
(vi) Duty free import entitlement for status holders having incremental growth of more than 25% in FOB value of exports (in free foreign exchange) subject to a minimum export turnover of Rs. 25 crore (in free foreign exchange). The duty free entitlement shall be 10% of the incremental growth in exports. Such entitlement can be used for import of capital goods, office equipment and inputs for their own factory or the factory of the associate/supporting manufacturer /job worker. The entitlement/goods shall not be transferable.
The exporters who gets the Status Certificate are known as 'Status Holders'. The term 'Status Holder' is defined in para 9.53 and reads as under: ""Status Holder" means an exporter recognised as "Export House/Trading House by DGFT/ Development Commissioner or Star Trading House/Super Star Trading House" by the Director General of Foreign Trade." As noted above, the main objective of this EXIM Policy was to achieve the share of 1% of global trade and accelerated growth in exports. For this purpose, certain sectors, where such exports were to be given the necessary boost, were mentioned in para 3.10 describing them as 'Thrust Sector'. These are as under:
3.10
With a view to achieve the share of 1% of global trade and accelerated growth in exports, the following shall be the thrust sectors:
a) Electronic hardware
b) Textile including garments
c) Auto components/ancillary
d) Gem & Jewellery
e) Agriculture
f) Service sector
Department of Commerce shall take concerted efforts to promote exports of these sectors by specific sectoral strategy.
It is already noted above in para 3.7.1 that various kinds of categories are eligible for recognition as status holders. These include Export Oriented Units (EOUs), Electronic Hardware Technology Parks (EHTPs) and Software Technology Parks (STPs). A separate Chapter, i.e. Chapter VI, is carved out to deal with the aforesaid categories. Eligibility thereof is stipulated in para 6.1, which is to the following effect:
Eligibility
6.1
Units undertaking to export their entire production of goods and services, except permissible sales in the DTA, as per the Policy, may be set up under the Export Oriented Unit (EOU) Scheme, Electronic Hardware Technology Park (EHTP) Scheme or Software Technology Park (STP) Scheme for manufacture of goods, including repair, re-making, reconditioning, re-engineering, and rendering of services. No trading units shall, however, be permitted.
Such EOUs/EHTPs/STPs are permitted to export goods through status holder, as specifically provided in para 6.10 and we reproduce hereunder:
Export through Status Holder
6.10
An EOU/EHTP/STP unit may export goods manufactured/software developed by it through a merchant exporter/status holder recognized under this Policy or any other EOU/EHTP/STP/SEZ unit.
Special Economic Zones (SEZs) are also entitled for Status Certificate. The provisions concerning these SEZs are contained in Chapter VII of the EXIM Policy. Their eligibility is defined in para 7.1 in the following words:
Eligibility
7.1
(a) Special Economic Zone (SEZ) is a specifically delineated duty free enclave and shall be deemed to be foreign territory for the purposes of trade operations and duties and tariffs.
(b) Goods and services going into the SEZ area from DTA shall be treated as exports and goods coming from the SEZ area into DTA shall be treated as if these are being imported.
(c) SEZ units may be set up for manufacture of goods and rendering of services.
Para 7.8 deals with DTA Sales and Supplies which these SEZ Units ma undertake. These SEZ Units are also entitled to export through status holder in terms of para 7.10, as under:
Export through Status Holder
7.10
SEZ unit may also export goods manufactured/software developed by it through a merchant exporter/status holder recognized under this Policy or any other EOU/SEZ/EHTP/STP unit.
Chapter IX contains definition of various terms which are used in the EXIM Policy. We have already noted the definition of 'Status Holder' as well as 'Third Party Exports'. Some other definitions which require a mention are as under:
9.5
"Actual User (Industrial)" means a person who utilises the imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit including a jobbing unit.
9.6
"Actual User (Non-Industrial)" means a person who utilises the imported goods for his own use in:
(i) any commercial establishment carrying on any business, trade or profession; or
(ii) any laboratory, Scientific or Research and Development (R & D) institution, university or other educational institution or hospital; or
(iii) any service industry.
9.10
"Capital Goods" means any plant, machinery, equipment or accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services, including those required for replacement, modernisation, technological upgradation or expansion. Capital goods also include packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality and pollution control. Capital goods may be for use in manufacturing, mining, agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture and viticulture as well as for use in the services sector.
9.31
"Manufacturer Exporter" means a person who export goods manufactured by him or intends to export such goods.
9.33
"Merchant Exporter" means a person engaged in trading activity and exporting or intending to export goods.
To put it in nutshell, EXIM Policy 2002-2007 was promulgated with the principal objective, inter alia, to facilitate sustained growth in exports to achieve a share of 1% of global merchandise trade. Therefore, the thrust of this Policy was to ensure and facilitate growth in exports. Because of this reason, exports and imports were made free, except in relation to cases where they were specifically regulated by the provisions of this Policy or under any law. In order to facilitate the growth of these exports, following measures were specifically provided in the EXIM Policy:
(a) third party exports;
(b) stipulating thrust sector, viz. mentioning those products which were having potential in achieving the target of 1% of global trade and accelerated growth in exports. It was, therefore, perceived that in these sectors there is an ample scope for boosting the exports. Six such sectors mentioned in para 3.10 include Gem and Jewellery Sector as well;
(c) it was held that growth in exports can be accelerated through small scale industry sector/mid level export houses. For this purpose, depending upon the level of export by the exporters, categories of the exporters were carved out, namely, Export Houses, Trading Houses, Star Trading Houses and Super Star Trading Houses. In order to encourage these export categories, depending upon their category, the export incentives were provided for them;
(d) in the same direction, certain categories were chosen for giving recognition as status holders, who could get such Status Certificate if they come within the purview of the definition of 'Status Holder' contained in para 9.55.
The importance that was given to these status holders was highlighted by the then Commerce Minister while announcing special strategic package for status holders. Relevant extract of the said speech contained in para 19 thereof is noted as under:
"19. The status holders have been a pillar of strength in increasing exports. There is a feeling among them that under the Exim Policy, substantive benefits are no longer available to them since the earlier benefits such as fast track clearance and relaxation from certain procedures, are now universally applicable in the liberalized environment. We recognize that the status holders will continue to play a significant and increasing role in boosting exports, particularly from the small scale sector, as most of the small scale units will not be in a position to directly access the international markets. Moreover, it will be our endeavor to facilitate India emerging as a major base for outsourcing products and services for the rest of the world.
They are also critical to our strategy for accelerating the rate of incremental growth of exports. Therefore, we intend to give a premium to the status holders who achieve high growth rate in their exports. It is proposed to give a duty free entitlement to them for import of capital goods, spares, office equipments and consumables. This will be available to status holders who achieve a growth rate of 25% or more in the current year with a minimum export performance of Rs.25 crore. They would be entitled to a duty free entitlement of 10% of the incremental growth in exports during the current financial year.
This entitlement would be subject to actual user condition which can be passed on to associate manufacturers." In fact, as a part of the EXIM Policy, with amendment coming into effect from April 01, 2003, certain incentives known as 'Special Strategic Package' for status holders was incorporated in para 3.7.2.1.
We are concerned with sub-para
(vi) thereof, which granted duty free entitlement of 10% of the incremental growth in exports. This para is reproduced above. A reading of the said para would demonstrate that in order to have the aforesaid entitlement, following conditions were to be satisfied:
(a) the exporter had to be 'Status Holder';
(b) achieving incremental growth of more than 25% in FOB value of exports in free foreign exchange ;
(c) minimum export turnover of ?25 crores in free foreign exchange;
(d) entitlement could be used for import of capital goods, office equipment and inputs for their own factory or the factory of the associate/supporting manufacturer/job worker;
(e) such entitlement/goods was non-transferable; and
(f) since the Scheme was intended to be a specific incentive for fast growing status holders, the benefits were to be available only after April 01, 204 on the basis of the export performance during the period April 01, 2003 to March 31, 2004. On the very same day, i.e. on March 31, 2003, in exercise of the powers conferred by Section 5 of the Act, read with para 1.1 of the EXIM Policy 2002-2007, the Central Government amended and notified the EXIM Policy 2002- 2007 (revised edition: March 2003). The revised edition came into force with effect from April 01, 2003.
The relevant provisions of the EXIM Policy, as amended upto March 31, 2003, and relevant for the purpose of the present case, are paras 1.1, 1.2, 1.3, 2.2, 2.3, 2.4, 2.6, 2.8, 2.9 and 2.10 and the same are reproduced below:
"1.1 In exercise of the powers conferred under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 (No. 22 of 1992) the Central Government hereby notifies the Export and Import Policy for the period 2002- 2007. This Policy shall come into force with effect from 1st April 2002 and shall remain in force upto 31st March 2007 and will be co-terminus with the Tenth Five Year Plan (2002-2007). However, the Central Government reserves the right in public interest to make any amendments to this Policy in exercise of the powers conferred by Section 5 of the Act. Such amendment shall be made by means of a Notification published in the Gazette of India.
1.2 Any Notifications made or Public Notices issued or anything done under the previous Export/ Import policies, and in force immediately before the commencement of this Policy shall, insofar as they are not inconsistent with the provisions of this Policy, continue to be in force and shall be deemed to have been made, issued or done under this Policy. Licence/certificate/permissions issued before the commencement of this Policy shall continue to be valid for the purpose for which such licence/certificate/permission was issued unless otherwise stipulated.
1.3 In case an export or import that is permitted freely under this policy is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted notwithstanding such restriction or regulation, unless otherwise stipulated, provided that the shipment of the export of import is made within the original validity of the irrevocable letter of credit established before the date of imposition of such restriction.
xx xx xx
2.2 Every exporter or importer shall comply with the provisions of Foreign Trade (Development & Regulation) Act 1992, the Rules and Orders made thereunder, the provisions of this Policy and the terms and conditions of any licence/certificate/ permission granted to him, as well as provisions of any other law for the time being in force. All imported goods shall also be subject to domestic laws, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods. No import or export of rough diamonds shall be permitted unless the shipment parcel is accompanied by Kiberley Process (KP) Certificate required under the procedure specified by the Gem & Jewellery Export Promotion Council (GJEPC).
2.3 If any question or doubt arises in respect of the interpretation of any provision contained in this Policy, or regarding the classification of any item in the ITC (HS) or Handbook (Vol.I) or Handbook (Vol.2), or Schedule of DEPB Rate the said question of doubt shall be referred to the Director General of Foreign Trade whose decision thereon shall be final and binding.
If any question or doubt arises whether a licence/certificate/permission has been issued in accordance with this Policy or if any question or doubt arises touching upon the scope and content of such documents, the same shall be referred to the Director General of Foreign Trade whose decision thereon shall be final and binding.
2.4 The Director General of Foreign Trade may, in any case or class of cases, specify the procedure to be followed by an exporter or importer or by any licensing or any other competent authority for the purpose of implementing the provisions of the Act the Rules and the Orders made thereunder and this Policy. Such procedures shall be included in the Handbook (Vol.1), Handbook (Vol.2), Schedule of DEPB Rate and in ITC (HS) and published by means of a public notice. Such procedures may, in like manner, be amended from time to time.
The Handbook (Vol.1) is a supplement to the EXIM Policy and contains relevant procedures and other details. The procedure of availing benefits under various schemes of the Policy are given in the Handbook (Vol.1).
xx xx xx 2.6 DGFT may, through a notification, adopt and enforce any measure necessary for: (i) Protection of public morals.
(ii) Protection of human, animal or plant life or health.
(iii) Protection of patents, trademarks and copyrights and the prevention of deceptive practices.
(iv) Prevention of prison labour.
(v) Prevention of national treasures of artistic, historic or archaeological value.
(vi) Conservation of exhaustible natural resources.
(vii) Protection of trade of fissionable material or material from which they are derived; and
(viii) Prevention of traffic in arms, ammunition and implements of war.
xx xx xx
2.8 Every licence/certificate/permission shall be valid for the period of validity specified in the licence/certificate/permission and shall contain such terms and conditions as may be specified by the licensing authority which may include:
(a) the quantity, description and value of the goods;
(b) Actual User condition;
(c) export obligation;
(d) the value addition to be achieved; and
(e) the minimum export price.
2.9 No person may claim a licence/certificate/ permission as a right and the Director General of Foreign Trade or the licensing authority shall have the power to refuse to grant or renew a licence/ certificate/permission in accordance with the provisions of the Act and the Rules made thereunder.
2.10 If a licence/certificate/permission holder violates any condition of the licence/certificate/ permission or fails to fulfill the export obligation, he shall be liable for action in accordance with the Act, the Rules and Orders made thereunder, the Policy and any other law for the time being in force. On March 31, 2003, in exercise of the powers conferred under paragraph 2.4 of the EXIM Policy, 2002-207, the DGFT notified the Handbook of Procedures (Volume-I) (Revised Edition - March 2003) which was to come into effect with effect from April 01, 2003.
Para 3.2.5 of the same provided that:
"The status holders having an annual incremental growth of more than 25% in the FOB value of exports (in free foreign exchange) shall be entitled to the facility of duty free credit entitlement subject to achieving a minimum annual export turnover of Rs.25 crore (in free foreign exchange). Such status holders shall be entitled to duty free credit entitlement certificate to the extent of 10% of the incremental growth in exports. Accordingly, status holders who will achieve more than 25% growth in exports in the year 2003-04 (in free foreign exchange) as compared to the exports made in 2002-03 (in free foreign exchange) subject to a minimum export of Rs.25 crore (in free foreign exchange) shall be entitled for duty free credit entitlement certificate @ 10% of the incremental growth in exports. The duty free credit entitlement can be used for import of capital goods, office equipments and inputs provided the same is freely importable under ITC (HS).
Such goods shall be non-transferable. Goods imported against such entitlement certificate shall be used by status holders or his supporting manufacturer/job worker provided the name and address of the supporting manufacturer/job worker is endorsed on the certificate issued by RLA. Application shall be filed with the jurisdictional regional licensing authority as per the address given in status certificate. The application for the duty free credit entitlement certificate would be made in Appendix 17D. The duty free entitlement certificate shall be valid for a period of 12 months.
The status holder shall within one month of the expiry of the validity of the duty free entitlement certificate, submit a statement of imports made under the certificate as per Appendix 17E to the jurisdictional Regional Licensing Authority."
After taking stock of the main provisions of the EXIM Policy which concern us in these proceedings, we now advert to the nature of amendments made by Notification dated January 28, 2004 as well as Public Notice of even date, followed by Notification No. 38 dated April 21, 2004. Vide Notification No. 28 dated January 28, 2004, which was issued in exercise of powers contained in Section 5 of the Act read with para 1.1 of the EXIM Policy, certain amendments were made in the EXIM Policy.
However, we are concerned here with amendment in para 3.7.2.1 in Chapter III. As noted above, this para provides certain incentives and contains seven sub- paragraphs. After sub-paragraph (vii), five notes were inserted by way of amendment. Though some provisions of Note I are the bone of contention, we reproduce here all these Notes for better understanding:
"Note 1 - For the purpose of calculating the value of exports, the following exports shall not be taken into account, namely:
(i) re-export of imported goods or exports made through transshipment;
(ii) export turnover of units operating under SEZ/ EOU/EHTP/STP Schemes or products manufactured by them and exported through DTA units;
(iii) deemed exports (even when payments are received in free foreign exchange) and payment from EEFC account;
(iv) service exports;
(v) supplies made by one status holder to another status holder;
(vi) export performance made by one status holder on behalf of other status holder will not be eligible for entitlement under the scheme;
(vii) supplies made or export performance effected by a non-status holder (Merchant exporter/ Manufacturer with any export performance in 2003-04) to a status holder if the applicant as well as the non status holder have less than 25 per cent incremental growth over their respective previous years direct export turnover; and
(viii) the exports made by an applicant within a group and the group to which it belongs has individually less than 25 per cent incremental growth of export.
Note 2 - The incremental growth of exports by an exporter shall not, directly or indirectly, be transferred to any other exporters.
Note 3 - Government reserved the right in public interest, to specify the export products, which shall not be eligible for calculation of incremental growth/ entitlement. Similarly, the government may also notify the list of goods, which shall not be allowed for imports under the scheme.
Note 4 - These guidelines will be applicable to the exports made on or after 1.04.2003. Note 5 - The entitlement will be in terms of duty credit."
To point out here itself, challenge was laid to sub-note (ii), (v), (vi) and (vii) of Note 1. Sub-paragraph (3) of the para 3.8 pertaining to the "duty free credit entitlement for service providers" was amended to read as under: "Service provider (other than hotels) shall be entitled to duty free import equivalent to 10% of the average foreign exchange earned by them in preceding three licensing years.
However, hotels (one star and above), heritage hotels, stand-alone restaurants approved by Department of Tourism, Govt. of India and other service providers in tourism sector registered with Department of Tourism, Govt. of India, and shall be entitled for duty free imports equivalent to 5% of the average foreign exchange earned by them in free imports equivalent to 5% of the average foreign exchange earned by them in preceding three licensing years.
For one & two star hotels and stand-alone restaurants, the foreign exchange earned through international credit cards only shall be taken into account for the entitlement under the scheme. The duty free entitlement shall be used for import of any capital good including spares, office equipment(s) & professional equipment(s), office furniture(s) & consumables. However, agriculture, diary products motor cars sports utility vehicles and all purpose vehicles would not be allowed to be imported against this entitlement."
Vide Public Notice bearing No. 40 dated January 28, 2004, which was issued along with the aforesaid Notification No.28 on the same date, certain amendments were made in the Handbook of Procedures (Volume-I). This Public Notice was issued by the DGFT in exercise of powers conferred under para 2.4 of the EXIM Policy. By this Public Notice, paragraph 3.2.6 was inserted below para 3.2.5 of the Handbook of Procedures (Volume-I), which reads as under: "The scheme will be applicable to status holders who were also status holders as on 31.3.2003 and who had achieved minimum export turnover of 25 crores in the year 2003-04:
I. For direct as well as third party exports, the Export documents viz. Export Order, Invoice, GR Form, Bank Realization Certificate should be in the name of applicant only. However, for the third party exports, where goods have been procured from a manufacturer, the shipping bill should contain the name of the exporter as well as the supporting manufacturer.
II. Goods allowed to be imported under this scheme shall have a nexus with the products exported and a declaration in this regard shall be made by the applicant in Appendix 17D.
III. The licensing authority shall at the time of issuance of the duty free credit entitlement certificate endorse the name of the associate manufacturer/supporting manufacturer/ job worker on the certificate as declared by the applicant. Goods imported against such entitlement certificate shall be used by the status holder or his supporting manufacturer/job worker in proportion to the value of their direct contribution to the entitlement.
IV. The last date for filing of such applications shall be 31st December.
V. The duty free credit entitlement certificate shall be issued with a single port of registration. For each duty free credit entitlement certificate, split certificates subject to a minimum of Rs.5 lakh each and multiples thereof may also be issued. A fee of Rs.1000/- each shall be paid for each split certificate. However, a request for issuance of split certificate(s) shall be made at the time of application only and shall not be considered at a later stage.
VI. The duty free credit entitlement certificate shall be valid for a period of 12 months from the date of issue. The status holder shall within one month of the last imports made under this certificate or within one month of expiry of the certificate whichever is earlier, submit a statement of imports/utilization made under the certificate as per Appendix 17E, to the jurisdictional Regional Licensing Authority who has issued the certificate with a copy to the jurisdictional excise authorities.
It also provided that: In terms of para 3.2.5 of Handbook of Procedures (Volume 1), the following items would not be taken into account for computation of entitlement and export performance under Duty Free Credit Entitlement Scheme for Status Holders:
a) Rough, uncut and semi polished diamonds.
b) Gold, silver in any form including plain jewellery thereof.
c) Good grains sourced from central pool maintained by FCI.
d) Items exported under free shipping bills.
3. In terms of para 3.2.5 of Handbook of Procedures (Volume
1) the following items would not be allowed for imports under Duty Free Entitlement Certificate for Status Holders:
a) Agricultural products, which fall under Chapters 1-24 of ITC (HS) classification of Export and Import items."
We would like to mention at this stage itself that as per the Government rationale for the amendment brought out by Notification No.28 dated 28.01.2004 and Public Notice No.40 dated 28.01.2004 are as under:
S. No.
Exclusion
Rational for exclusion
Note 1 (i)
Re-export of imported goods or exports made through transshipment;
Such goods are imported under the customs bond and re-exported with little value addition. Such exports come from country A and go to country B via India and are only pass through exports and not considered exports made in India.
(ii)
Export turnover of units operating under SEZ/ EOU/EHTP/STPI Schemes or products manufactured by them and exported through DTA units;
DFCE would be of no use to Export Oriented Units (EOU) as they are already entitled to import duty free. And since a firm is not allowed to transfer or sell its DFCE entitlements or goods, it cannot benefit from it. Notification 28 and Public Notice 40, kept the above logic in mind while excluding 100% EOU from the said scheme.
EXIM Policy makes a very clear distinction between the exports from an Export Oriented Units (EOU) and other exports (called Domestic Tariff Area or DTA exports) primarily because of the difference in nature of support required by the two sectors. EOUs have been allowed zero duty facilities, besides availing industrial licensing exemptions. Since these exemptions are not available to DTA exporters, specific schemes like DFCE been formulated.
(iii)
Deemed exports
Goods do not leave the country and are not considered physical exports.
(iv)
Service exports
The DFCE scheme was available only for physical goods.
(v)
Supplies made by one status holder to another status holder;
The benefits of DFCE Scheme were not applicable to all the status holders but only to those status holders meeting the growth and turnover criteria.
(vi)
Export performance made by one status holder on behalf of other status holder will not be eligible for entitlement under the scheme.
More than 1300 crores of the exports of M/s Adani Exports were accounted by the supplies taken from the status holders who supplied to the petitioners because they were not meeting the minimum turnover and/or growth criteria required to take benefit under the scheme. Claiming other firms export would mean that the country's export turnover would remain constant while applicant firms' turnover will sky rocket. This would not lead to the stated objective of accelerating the rate of incremental growth of country's exports.
(vii)
Supplies made or export performance effected by a non-status holder (Merchant exporter/Manufacture r with any export performance in 2003-04) to a status holder if the applicant as well as the non status holder have less than 25 per cent incremental growth over their respective previous years direct export turnover.
(viii)
The exports made by an applicant within a group and the group to which it belongs has individually less than 25 per cent incremental growth of export.
M/s Reliance Industries Limited manipulated the export turnover of its group company IPCL to maximize its DFCE and Target plus entitlements. All this led to artificially increasing the export performance which was against the basic principle of the DFCE and hence excluded.
Note 2
Note 2. - The incremental growth of exports by an exporter shall not, directly or indirectly, be transferred to any other exporters.
The scheme explicitly was based on individual exporters performance. Claiming other firm's exports would mean that the country's export turnover would remain constant while applicant firm's turnover will skyrocket.
If the firm had focused on increasing their exports, both the firm and the country would have gained in terms of export turnover, however, the firms chose to focus on people who were already exporting (but were not entitled for this benefit). Thus, the firm's turnover in the past year grew at astronomical rate whereas country's export growth was just average.
A
S. No.
Exclusion
Rational for exclusion
a
Rough, uncut and semi polished diamonds
Rough diamonds are not produced in India (Except for a trickle from Panna). Exporting rough diamonds from India is like exporting ostrich or giraffes from India.
India imports rough diamonds polished them and exports to the world. The scheme ban rough diamond while fully allowing polished diamonds.
Together, the export of diamonds and supplies taken from other status holders accounted for 81.4% of the exports of M/s Adani Exports Ltd. during the year 2003-04. Of these 2475 crores were accounted for by the export of rough and re-exported polished diamonds.
The fact that the petitioners were exporting rough diamonds merely to take the benefits of DFCE Scheme is proved beyond doubt by the fact that firm stopped exporting the rough diamonds the moment the Notification was issued in January, 2004 and have not exported any rough diamonds during January - March, 2004.
b
Gold, silver in any form including plain jewellery thereof
10% DFCE benefits allowed the exporters to experiment in commodities like gold wherein India does not have comparative advantage. Gold coins and jewellery was exported by M/s. Adani Exports and M/s Rajesh Exports largely to ports like Dubai where it was melted and brought back to India to be exported again and again. The entire operation can be profitably financed through the proceeds under the Scheme.
With the exports taking place within two days of the imports, 60 tonnes of gold could be re-circulated 80-90 times in a year. That means with a little working capital, the country can lose Rs.1500 for every Rs.100 invested by an unscrupulous exporter. Such exports will show an increase in India's exports, but this will be unsustainable increase and is ultimately a drain on country's finances.
c
Food grains sourced from central pool maintained by FCI
Food grains sourced from the open market were allowed for benefit under the Scheme. FCI is under Government control where prices are already subsidised. As the Government did not want to further subsidize the food grains sourced from the central pool maintained by FCI, such exports were excluded.
d
Items exported under free shipping bills
Free (also called white) shipping bills do not mandatorily require verification of valuation by Customs authority (as per Customs Circular No.6/2002 dated 23/1/2002). Firms export under free shipping bills when they do not apply for any Government incentives subsequently.
Government received intelligence reports that the export of high value items like rough diamonds were taking place under Free shipping bills where value of the goods may be easily inflated as there was no customs valuation, Government excluded these from the DFCE scheme.
M/s Adani Export Limited, on February 07, 2004, filed S.C.A. No.1676 of 2004 in the High Court of Gujarat at Ahmedabad challenging the validity of the Notification No. 28 and Public Notice No. 40 dated January 28, 2004. Thereafter, as noted above, Notification No. 38 dated April 21, 2004 was issued vide which Note 6 and 7 were inserted in para 3.7.2.1 of the EXIM Policy. It may be recalled that first five notes were inserted by Notification No. 28 dated January 28, 2004. By Note 6, certain products and category of products were excluded from entitlement under duty free entitlement certificate for status holders, whereas under Note 7, certain items were not allowed for imports under duty free entitlement certificate for status holders. These Notes read as under:
"Note 6 - The export of the following products and categories of products would not be permitted for counting entitlement under the Duty Free Entitlement Certificate for Status Holders:
e) Rough, uncut and semi polished diamonds
f) Gold, silver in any form including plain jewellery thereof
g) Good grains sourced from central pool maintained by FCI
h) Items exported under free shipping bills. Note 7 - The following items would not be allowed for imports under Duty Free Entitlement Certificate for Status Holders: Agricultural products, which fall under Chapters 1-24 of I T C (HS) classification of Export and Import items."
Note 6 added in para 3.7.2.1 of the EXIM Policy was earlier inserted as part of para 3.2.6 in the Handbook of Procedures (Volume-I) and is subject matter of controversy. On July 23, 2004, the High Court of Gujarat partly allowed Special Civil Application No. 1676 of 2004 holding that "so far as Note 6 to Para 3.7.2.1 of the EXIM Policy as inserted by the Government notifications dated April 21 and 24, 2004 and the D.G.F.T.'s public notice dated 28.01.2004 exclude the following exports from the benefit of the duty free import entitlement for the export status holders as contained in Para 3.7.2.1 of the EXIM Policy 2002-2007:-
(i) Items exported under free shipping bills.
(ii) Gold, Silver in any form including plain jewellery thereof, insofar as the import of capital goods and office equipment for the factory of the associate/supporting manufacturer/ job worker of the petitioner Company is concerned.
The High Court also clarified that the exports effected by a non status holder (without any export performance in the year previous to 2003-04) are eligible for the benefits under the Special Scheme irrespective of the fact that such exporters did not have any incremental growth in exports, for obvious reason that they had made no exports in the previous years, in the first place. Aggrieved by the judgment and order of the High Court of Gujarat in Special Civil Application No. 1676 of 2004, M/s Adani Exports on October 30, 2004 filed Special Leave Petition (Civil) No...CC 6638 of 2005.
On April 07, 2005 in exercise of the powers conferred under paragraph 2.4 of the Export & Import Policy 2002-2007, the Director General of Foreign Trade amended the first three lines of Para 3.2.6 of the Handbook of Procedures. The amended provision provided that: "The scheme will be applicable to the status holders/star export houses who have achieved a minimum export turnover of Rs.25 crores in the year 2003- 2004".
It also replaced the earlier appendix 17D prescribing the application format for claiming the Duty Free Credit Entitlement. On July 04, 2005 Writ Petition No. 2397 of 2004 filed by M/s. Kanak Exports before the High Court of Judicature at Bombay challenging the Notification No. 28(RE-2003)/2002-2007 dated January 28, 2004, Public Notice No. 40(RE- 2003)/2002-2007, Notification No. 38(RE-2003)2002-2007, came up for hearing before a Division Bench of High Court and upon hearing the parties, the High Court of Judicature at Bombay upheld the validity of Notification No. 28(RE-2003)/2002-2007 dated January 28, 2004.
However, it set aside the Public Notice No. 40 dated January 28, 2004 and further held that the Notifications dated April 21 and 23, 2004 have only prospective operation which means that exports made by the exporters respondent prior to April 21, 2004 in respect of the classes of goods covered by Notifications dated April 21/23, 2004 were entitled to be computed for the purposes of determining the entitlement of Duty Free Imports. On October 21, 2005, this Court issued notice on the Special Leave Petition as well as on application for condonation of delay in the Special Leave Petition (C) (CC NO.6638 of 2005) filed by M/s. Adani Export Ltd.
On December 13, 2005, aggrieved by the order of Bombay High Court dated July 04, 2005 in W.P. No.2397 of 2004 upholding the validity of the Notification No.28 of 2004 dated January 28, 2004, M/s. Kanak Exports filed Special Leave Petition (Civil) No. 26123 of 2005. Aggrieved by the order of the Bombay High Court dated July 04, 2005 in Writ Petition No.2397 of 2004, the appellant/Union of India and DGFT filed Special Leave Petition (Civil) No.1331 of 2006. On January 13, 2006 Special Leave Petition (C) No. 26123 of 2005 filed by M/s. Kanak Exports and Special Leave Petition (Civil) No.1331 of 2006 filed by the appellants/Union of India and DGFT challenging the order of the Bombay High Court dated July 04, 2005 in W.P.(C) No. 2397 of 2004 came up for hearing before this Court.
This Court upon hearing the parties granted leave in the Special Leave Petition (C) No. 1331 of 2006 and in the meantime stayed the operation of the impugned order in Civil Appeal arising out of S.L.P.(C) No.1331 of 2006. On February 17, 2006, the Union of India and DGFT aggrieved by the judgment and order of the High Court of Gujarat at Ahmedabad in Special Civil Application No.1676 of 2004 dated July 23, 2004 filed the Special Leave Petition.
The High Court of Gujarat, in the lead case Adani Exports Limited & Anr. v. Union of India & Anr.[1], had rendered its judgment on July 23, 2004, which was available with the High Court of Bombay when it gave its decision on July 04, 2005. Insofar as the Gujarat High Court is concerned, it partly allowed the petition quashing Public Notice dated January 28, 2004 and Note 6 to Para 3.7.2.1 of the EXIM Policy, as inserted by the Government Notifications dated April 21 and 23, 2004 and rejected the challenge on all other counts.
The Bombay High Court substantially followed the same line of action, except differing with the Gujarat High Court to a limited extent thereby granting some more relief to these petitioners. Since these two judgments are the subject matter of these appeals, it would be apposite to scan through these judgments to find out what actually is decided by the two High Courts and the reasons in support of their respective decisions.
JUDGMENT of THE GUJARAT HIGH COURT
In the Special Civil Application filed by Adani Exports Limited in the Gujarat High Court challenge was laid to the amendment to para 3.7.2.1 of the EXIM Policy vide Notification dated January 28, 2004 whereby five Notes were inserted. It also challenged insertion of Note 6 vide Notification dated April 21, 2004 read with Notification dated April 23, 2004 and Public Notice dated January 28, 2004 issued by the DGFT.
The validity of the aforesaid provisions was questioned on the following premise:
(i) Since Note 4 provided that the guidelines would be applicable to exports made on or after April 01, 2003, Notification was challenged on the ground that it amounted to giving retrospective effect to the amendment Notification dated January 28, 2004 and there was no such power with the Central Government under Section 5 of the Act, or otherwise, to make amendments to the EXIM Policy with retrospective effect, or even retroactively.
(ii) These Notes, particularly Notes 1 to 3, 6 and 7, added by the impugned Notifications were not mere guidelines or clarificatory in nature, but amounted to making substantial changes by inserting new conditions under the cover of clarification, which was not permissible.
(iii) Note 4 was also violative of the petitioners fundamental rights under Article 14 and 19(1)(g) of the Constitution.
(iv) Do
