S.C. Dharmadhikari, J.
1. By these Writ Petitions under Article 226 of the Constitution of India, the Petitioners are praying for striking down Notification No.2(RE-2013)/ 2009-14 dated 18th April, 2013 (Annexure' A') issued for retrospective amendment of Foreign Trade Policy and corresponding amendment to Customs Notification No.98/2009-Cus dated 11th September, 2009 by way of Notification No.24/2013-Cus dated 18th April, 2013 (Annexure - 'B') and Notification No.45/2013-Cus dated 17th September, 2013 (Annexure' C'), OR to read them down so as to applicable only in respect of Duty Free Import Authorization (for short âDFIAâ) issued on or after 18th April, 2013. They are also seeking a direction to Respondent No.4 to assess the Petitioner's Bill of Entry No.3504275 dated 10th October, 2013 (Annexure 'H') with exemption from levy of any Antidumping Duty on imports made under Transferable DFIA No.0810119989 dated 3rd April, 2013(Annexure - 'G').
2. The reliefs are claimed in the following factual background:
The Petitioners are engaged in the import/export business. They rely upon the scheme known as Duty Free Import Authorization(DFIA) introduced in the Foreign Trade Policy with effect from 1st May, 2006. As per para 4.2.1 of the Foreign Trade Policy, DFIA is issued to allow duty free import of inputs and other items which are required for production of export. Para 4.2.2 of this Policy permitted issuance of authorization and conferred thereby entitlement to exemption from payment of basic customs duty, Anti-dumping Duty and Safeguard Duty, if any, on the goods mentioned in the import under DFIA.
3. With effect from 18th April, 2013 the Foreign Trade Policy was amended and new sub-para 4.2.6(d) was inserted therein vide a Notification No.2 dated 18th April, 2013. On the same date, the Customs Notification No.98/2009 dated 11th September, 2009 was amended by way of Notification No.24 of 2013 dated 18th April, 2013. The Petitioners have in terms of para 4.2.6 of the Foreign Trade Policy purchased the DFIA licence. They claimed that such a licence is transferable. They purchased a licence bearing No.0810119989 dated 3rd April, 2013. It is their case that on transfer of the licence in their favour and upon presentation they would get exemption from payment of, inter alia, Safeguard Duty and Anti-dumping Duty on import of goods specifically mentioned in the list of import items allowed to be imported duty free in the said licence. The Petitioners submit that there was no amendment to the licence. The Petitioners, then, pointed out the validity period of this licence. They imported goods mentioned in the DFIA and presented Bill of Entry No.3504275 dated 10th October, 2013 with the office of the Respondent No.4.
4. Upon inquiries with the officers of Respondent No.4, the Petitioners were orally informed that no exemption from Antidumping Duty would be available on the transferable DFIA as the endorsement of transferability is after 18th April, 2013.
5. They also rely upon a letter dated 1st August, 2013 which has been issued by an officer through the Ministry of Commerce, Government of India, that the provisions of Notification No.2 dated 18th April, 2013 would be applicable in respect of such DFIAs where transferability has been endorsed on or after 18th April, 2013. This opinion was re-endorsed by another letter dated 16th September, 2013. It is stated that on 17th September, 2013, Notification No.45/2013 was issued by further amending a Notification No.98/2009 dated 11th September, 2009 providing therein that exemption from Safeguard Duty and Antidumping Duty shall not be available in case materials are imported against an authorization or transferability on or after 18th April, 2013 by the Regional Authority.
6. Chapter 4 of the Foreign Trade Policy and Handbook of Procedures, 2009-14 (17th Edition 2012) contains provisions of Duty Exemption and Remission Schemes. Para 4.1 states vide clause (a) that duty exemption schemes enable duty free import or inputs required for export production. The duty exemption schemes consist of Advance Authorization and Duty Free Import Authorization (DFIA). By clause (b) the Duty Remission Scheme enables post export replenishment/remission of duty on inputs used in export product. The Duty Remission Scheme consists of Duty Entitlement Passbook (DEPB) Scheme and Duty Drawback (DBK) Scheme.
7. We are in this case concerned with Duty Exemption Schemes enabling duty free import of inputs required for export production and particularly Duty Free Import Authorization (DFIA). In that regard, we find the following stipulations in the Foreign Trade Policy:
â4.2.1 Scheme
DFIA is issued to allow duty free import of inputs, fuel, oil, energy sources, catalyst which are required for production of export product. DGFT, by means of Public Notice, may exclude any product(s) from purview of DFIA.
4.2.2 Entitlement
(a) Provisions of paragraph 4.1.3 shall be applicable in case of DFIA. However, these Authorizations shall be issued only for products for which Standard Input and Output Norms (SION) have been notified.
(b) DFIA shall be issued in accordance with Policy and procedure in force on date of issue of Authorization.
(c) In case of post export DFIA, a merchant exporter shall be required to mention only name(s) and address(s) of manufacturer(s) of the export product(s). Applicant is required to file application to concerned RA before effecting exports under DFIA.
(d) Pre-export Authorization shall be issued with actual user condition and shall be exempted from payment of basic customs duty, additional customs duty/excise duty, education cess, anti-dumping duty and safeguard duty, if any.
(e) In case of actual user DFIA and where CENVAT credit facility on inputs have been availed for the exported goods, even after completion of export obligation, the goods imported against such DFIA shall be utilized in the manufacturer of dutiable goods whether within the same factory or outside (by a supporting manufacturer).
4.2.3 Import items
Provisions of paragraphs 4.1.11, 4.1.12, 4.1.13 and 4.1.14 of FTP shall be applicable for DFIA holder.
4.2.4 Value Addition
A minimum 20% value addition shall be required for issuance of DFIA. However, for items in gems and jewellery sector value addition as prescribed under paragraph 4A.2.1 of HBP v1. Shall apply. Similarly, for items where a higher value addition has been prescribed under Advance Authorization Scheme, the same value addition for DFIA shall be applied.
4.2.5 Export Obligation
Procedure and time period related to fulfillment of Export Obligation have been laid down in Chapter 4 of HBP v1.
4.2.6 Transferability
(a) Once export obligation has been fulfilled, request for transferability of Authorization or inputs imported against it may be made before concerned RA. Once transferability is endorsed, Authorization holder may transfer DFIA or duty free inputs, except fuel and any other item(s) notified by DGFT. However, for fuel, import entitlement may be transferred only to companies which have been granted authorization to market fuel by Ministry of Petroleum and Natural Gas.
(b) Wherever SIONs prescribe actual user condition and in case of Acetic Anhydride, Ephedrine and Pseudo Ephedrine, DFIA shall be issued with actual user condition for these inputs and no transferability shall be allowed for these inputs even after fulfillment of export obligation.
(c) After endorsement of transferability, imports/domestic procurement against authorization or transfer of imported inputs/domestically procured inputs shall be subject to payment of applicable additional customs duty/excise duty. While endorsing transferability, authorization would bear a note as to liability of such additional customs duty/excise duty. However, in case where CENVAT facility has not been availed, exemption from additional customs duty/excise duty would be available even after endorsement of transferability on DFIA.
4.2.7 CENVAT Facility
CENVAT credit facility shall be available for inputs either imported or procured indigenously.â
8. The Government of India in exercise of powers conferred under section 25 of the Customs Act, issued Notification No.98/2009 and exempted the materials imported into India against DFIA from the whole of duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 and from the whole of Additional Duty, Safeguard Duty and Anti-dumping Duty leviable thereon, respectively, under section 3, 8B and 9A of the Customs Tariff Act, 1975 subject to the conditions mentioned therein. The Notification provides that where the imports precede the exports, the importer has to fulfill the condition of exports. Thus, exemption is contingent upon subsequent fulfillment of export obligation. Where, however, the exports are already done and the licence is issued, there is assured benefit of exemption from payment of the customs duty. Only post import conditions may have to be fulfilled. But, the quantum/extent of exemption is already accrued based on the exports already made and licence obtained.
9. The licence in question was issued in favour of M/s. Pushpanjali Floriculture Limited. That was dated 3rd April, 2013. This was transferable and Petitioners purchased it on 13th September, 2013.
10. The Petitioners rely upon the fact that the holder of the licence exported the goods which are evidenced by page 33 of the paper book. They rely upon the exports which have been effected from 13th August, 2012 to 1st November, 2012. They also rely upon Condition No.12 in the Condition Sheet which makes all conditions of Foreign Trade Policy and Procedures and ITC (HS) Classification Book as amended, applicable unless specifically dispensed with against the authorization.
11. The Foreign Trade Policy was amended and new sub-paragraph 4.2.6(d) was inserted in the same by Notification No.2 dated 18th April, 2013 and that reads as follows:
â4.2.6(d) Exemption from Anti-dumping Duty and Safeguard Duty would be available on actual user basis only i.e. before endorsement of 'transferability'.â
12. On the same date, the Customs Notification No.98/2009 dated
11th September, 2009 was amended vide a Notification No.24/2013 by renumbering the then existing paragraph 2 as paragraph 2B and inserting before it new para 2 and 2A.
13. We are, then, shown the amendments to this Notification No.98/2009. The amendments carried out on 17th September, 2013 by Notification No.45/2013 provide that the exemption from Safeguard Duty and Anti-dumping Duty shall not be available in case materials are imported against the authorization or transferability on or after 18th April, 2013 by the Regional Authority. The Notification further provided that in case imported materials are transferred with permission the importer shall pay the Anti-dumping Duty along with interest at the rate of 15% per annum from the date of clearance on import of the said materials.
14. The case of the Petitioners is that they purchased the transferability DFIA licence No.810119989 dated 3rd April, 2013. They were under a belief that as per exemption Notification, on presentation of this licence they would get exemption from payment of, inter alia, Safeguard and Anti-dumping Duty on import of goods specifically mentioned in the list of import items allowed to be imported as duty free in terms of the licence. Annexure 'G' is a copy of the transferable licence. The case of the Petitioners is that the licence was not amended while granting transferability so as to deny any exemption from Antidumping Duty. The Petitioners imported the goods against the Bill of Entry referred above but the officers of Respondent No.4 informed the Petitioners that no exemption from Anti-dumping Duty would be available on this transferable DFIA. This was because the endorsement of transferability is after 18th April, 2013.
15. It is, therefore, aggrieved by such a stand of the Respondent No.4 and its officers that the Petitioners instituted this Writ Petition.
16. Mr. Sridharan, learned Senior Counsel, appearing on behalf of the Petitioners submitted that Chapter IV of the Foreign Trade Policy 2009-14 (for short âFTPâ) deals with the duty exemption and remission schemes. These are intended to promote export of goods. One of the schemes contained in Chapter IV is DFIA. The DFIA allows duty free import of inputs, fuel, oil, energy sources, catalyst which are required for production of export product. Para 4.2.2 (b) is entitled that DFIA shall be issued in accordance with the Policy and procedure in force on the date of issue of Authorization.
17. Mr. Sridharan has relied upon the wording of the Notification No.98/2009 dated 11th September, 2009. He submits that the exemption to the materials imported into India against DFIA is from the whole of duty of Customs leviable thereon which is specified in the Tariff Act and also from the whole of Additional Duty, Safeguard Duty and Anti-dumping Duty leviable thereon respectively under the same Tariff Act and subject to conditions mentioned therein, then, this benefit is also available to the transferee of the licence. He could not be denied this benefit and exemption once the conditions are fulfilled by such transferee. Merely because an amendment is made now to this Notification and a date is prescribed for availment of the exemption, that does not mean that the Petitioners case is to be treated differently. In other words, the Petitioner must be granted the same benefits and exemptions and amendment made to the Notification will not apply to cases in which the advance licences have been issued prior to the amendment being brought into force. The amendment could not be applied to cases where the holder of the licence had fulfilled the export commitment. In these circumstances, the Petitioners are entitled to the reliefs claimed in the Writ Petition.
18. Mr. Sridharan has submitted that there is no power either under section 25 of the Customs Act, 1962 or section 5 of the Foreign Trade (Development and Regulation) Act, 1993 to amend either the notification or Foreign Trade Policy retrospectively. It is submitted that there is no provision either under section 25 of the Customs Act, 1962 or the Foreign Trade (Development and Regulations) Act, 1992 to amend retrospectively the exemption notification or the Foreign Trade Policy respectively. It is now well settled position of law that the subordinate legislation cannot be amended retrospectively unless the power to amend the subordinate legislation retrospectively is expressly conferred by the parent legislation. The Petitioners have a vested right to claim exemption from payment of Anti-dumping and Safeguard Duty for DFIA issued prior to 18th April, 2013 based on the exports made prior to 18th April, 2013, notwithstanding transferability endorsement made post 18th April, 2013 and imports made thereafter. In the present case, the exports have being effected prior to the amendment and under the unamended Notification, the import of goods duty free is assured. Therefore, the Petitioners are entitled to import the goods covered by DFIA dated 3rd April, 2013 without payment of Anti-dumping and Safeguard Duty, even though the endorsement of transferability is post 13th April, 2013. The amendment to Foreign Trade Policy vide Notification No.2 (re-2013)/2009-2014 dated 18th April, 2013 and customs Notification No.23/2013-cus dated 18th April, 2013 are prospective and not retrospective. The amendment will not apply to exports made and DFIA obtained prior to date of amendment, even though imports are made after amendment by transference of the licence.
19. Mr. Sridharan has relied upon the following decisions in support of his contentions:
1) Bakul Cashew Co. and Others V/s. Sales Tax Officer, Quilon and Another reported in (1986) 2 Supreme Court Cases 365;
2) K. S. Paripoornan V/s. State of Kerala and Others reported in (1994) 5 Supreme Court Cases 593; and
3) Sonia Fisheries V/s. Union of India reported in 1997 (90) E.L.T. 22 (Bom.)
20. On the other hand, Mr. Jetly, learned Senior Counsel, appearing on behalf of the Respondents submits that there is no merit in both Writ Petitions. He submits that in the affidavit in reply which has been pointed out as to how the challenge is misconceived and untenable. It is pointed out that the Petitioner is a purchaser of the transferable DFIA. The Notification dated 18th April, 2013 inserts a new sub-paragraph 4.2.6(d) whereby exemption from Anti-dumping Duty and Safeguard Duty would be available on actual user basis only. In other words, before the endorsement of transferability. The Petitioners cannot claim a vested right merely by virtue of the transferability. The Petitioners have acquired the rights under the licence only in terms of the Notifications and not de hors the same. The Central Government in terms of para 1.3 of the Foreign Trade Policy reserved rights in public interest to make any amendments to the policy. That amendments can be made by issuance of a Notification and in terms of the powers conferred by section 5 of the Foreign Trade (Development and Regulation) Act, 1992. Para 2.4 of the Foreign Trade Policy envisages that the Director General of Foreign Trade may specify procedure to be followed by an exporter or importer or by any licensing or any other competent authority for purpose of implementing provisions of the Foreign Trade (Development and Regulation) Act, 1992, the rules and the orders made thereunder so also the Foreign Trade Policy. The Petitioners are not entitled to claim the benefits or the exemptions beyond what is stipulated in the policy.
21. Mr. Jetly submitted that para 4.2.6 of Foreign Trade Policy allows transferability of DFIA once export obligation has been fulfilled. The rationale behind DFIA transferability is that some exporters use indigenous raw materials, materials from their stock or manufacture raw material in house in stead of imported material. This saves valuable foreign exchange. To give relative benefits of saved custom duty, DFIA is made transferable. Under it the exporters will export the products under SION and shall be eligible for corresponding duty free imports. The Exporter can sell DFIA in market and corresponding duty can be encashed by them.
22. Mr. Jetly further submitted that the amendment at page 14(W.P. No.9955/2013) is not retrospective because it will be applicable in respect of all DFIA's where authorization have been made transferable on or after 18th April, 2013. That means exemption from Anti-dumping Duty and Safeguard Duty will not be available for all those DFIA's on which transferability has been endorsed on or after 18th April, 2013. The Anti-dumping Duty is payable because the L/C No.810119989 endorsed on the Bill of Entry has been made transferable on 19th April, 2013 which is after the cut off date of 18th April, 2013 that is mentioned in impugned Notification No.2 dated 14th April, 2013 and, therefore, the Petitioners are liable to pay Anti-dumping Duty.
23. For above reasons, Mr. Jetly submits that the Writ Petition be dismissed.
24. With the assistance of the learned counsel appearing for both sides, we have perused the Writ Petition, the annexures thereto, the affidavit in reply, the compilations containing the relevant statutory provisions, circulars/notifications as also the decisions relied upon.
25. It is common ground that the Petitioners are relying upon the transfer letter in their favour from M/s. Pushpanjali Floriculture Ltd. which transfers import licence No.0810119989 dated 3rd April, 2013. On this transfer letter, the Petitioners proceeded on the footing that they would get exemption from payment of, inter alia, Safeguard Duty and Anti-dumping Duty on import of goods specifically mentioned in the list of import items allowed to be imported duty free under the said DFIA licence. This licence is transferable. The Petitioners also rely upon the endorsement of transferability which has been made thereon.
26. A perusal of Annexure-G to the Writ Petition would show that the transfer letter mentions the name of M/s. Amrut International. Thus, Pushpanjali Floriculture Ltd. claimed that they are entitled to the import licence and which is transferable. The Petitioners purchased this transferable DFIA from this legal entity. At the same time, page 27 of the paper book would show that it is a Re-transferable letter. That letter refers to the Re-transfer of this licence and it appears that the Retransfer is in favour of M/s. Pushpanjali Floriculture Ltd. The Petitioners have also annexed as (Annexure-H) a copy of the Bill of Entry. However, all the annexures prior to the same would denote as to how the licence (DFIA) has changed hands. This would all show as to how Petitioners are themselves not clear about the export obligations being discharged under this DFIA.
27. Be that as it may, the Petitioners are annexing the Notification No.2(RE-2013)/2009-2014 dated 18th April, 2013. That contains amendments in Chapter 4 of the Foreign Trade Policy 2009-2014. The Foreign Trade Policy was amended and a new sub-para(d) after para 4.2.6(c) was inserted in the said policy. That is reproduced in para 11 above.
28. The Customs Notification Nos.91/2009, 94/2009, 98/2009 and 104/2009 came to be amended by Notification No.24/2013 dated 18th April, 2013. This amendment to the extent relevant reads as under:
â98/2009-Customs, dated the 11th September, 2009 [vide number G.S.R. 664(E), dated the 11th September, 2009]. In the said Notification, â
(a) in the opening paragraph, for the words âCustoms Tariff Act, subjectâ, the words and figure âCustoms Tariff Act, except to the extent specified in paragraph 2 of this Notification, subjectâ shall be substituted.
(b) the existing paragraph 2 shall be renumbered as paragraph 2B and before the paragraph 2B so renumbered, the following paragraphs shall be inserted, namely:
â2. The exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorization made transferable by the Regional Authority.
2A. In case the imported materials are transferred with the permission of Regional Authority, the importer shall pay an amount equal to the safeguard duty and anti-dumping duty leviable on the material so imported and transferred, but for the exemption contained in paragraph 1 above, together with interest at the rate of fifteen per cent per annum from the date of clearance on import of the said materials.â
29. The Petitioners have also pointed out as to how the Secretary in the Ministry of Commerce, Government of India, decided that in respect of DFIAs, where authorization have been made transferable on or after 18th April, 2013, exemption from Anti-dumping and Safeguard Duty will not be available.
30. The Petitioners also point out the amendments which have been made in the Customs Notification No.98/2009 dated 11th September, 2009 by Notification No.45/2013 dated 17th September, 2013. That amendment Notification reads as under:
âIn the said Notification, â
(a) in the opening paragraph, for the words and figure âCustoms Tariff Act, except to the extent specified in paragraph 2 of this notification, subjectâ, the words, figures and letter âCustoms Tariff Act, except to the extent specified in paragraph 2 or 2A of this notification, as the case may be, subjectâ shall be substituted.
(b) the existing paragraph 2A shall be renumbered as paragraph 2AB thereof and before paragraph 2AB as so numbered, the following paragraph shall be inserted, namely:
â2A. With effect from 17th September, 2013, the exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorization that has been made transferable on or after 18th April, 2013 by the Regional Authority.â;
(c) after paragraph 2AB as so renumbered, the following paragraph shall be inserted, namely:
â2AC. With effect from 17th September, 2013, in case the imported materials are transferred with the permission of Regional Authority, and where such permission is granted on or after 18th April, 2013 the importer shall pay an amount equal to the safeguard duty and antidumping duty leviable on the material so imported and transferred, but for the exemption contained in paragraph 1 above, together with interest at the rate of fifteen per cent per annum from the date of clearance on import of the said materials.â
[F. No.605/36/2013DBK]
(Sanjay Kumar)
Under Secretary to the Government of India.â
31. The Petitioners purchased the DFIA on 13th September, 2013. The claim of the Petitioners is that the exporter was issued the DFIA on 3rd April, 2013 but the holder of the licence exported the goods between August to November 2012. Thus, while they claim that there is no provision either under section 25 of the Customs Act, 1962 or the Foreign Trade Policy Act, 1992 to amend the exemption Notification or the Foreign Trade Policy retrospectively at the same time they argue as above.
32. However, we find that once the Foreign Trade Policy has been amended and it has been clarified that exemption from Antidumping Duty and Safeguard Duty would be available on actual user basis only and that is before endorsement of transferability, then, we do not see how the above issues and raised by Mr. Sridharan can strictly arise for consideration and determination.
33. The Foreign Trade Policy was amended by inserting the above condition or stipulation and in consonance with that the Government of India, in the Ministry of Finance (Department of Revenue) made the amendments in the Customs Notification on 18th April, 2013. That the Customs Notification grants exemption from the duties noted above. However, the Customs Authorities clarified that the exemption from Safeguard Duty and Anti-dumping Duty shall not be available in case materials are imported against an authorization made transferable by the Regional Authority. In case the imported materials are transferred with the permission of the Regional Authority, the importer shall pay the amount equal to the Safeguard Duty and Anti-dumping Duty leviable on the materials so imported and transferred. The further amendments to the Notification were necessitated because the Customs Authorities found that the insertion in the Foreign Trade Policy to disallow exemption from Anti-dumping Duty and Safeguard Duty once a DFIA is made transferable has been effected from 18th April, 2013. There could be situations wherein on that date certain commitments may have been made on the basis of the transferability of DFIA. Hence, to bring the exemption notifications and the amendments thereto in tune with the insertion in the Foreign Trade Policy that the further notification/further amendment dated 17th September, 2013 has been made. We do not see how this could be said to be a case covered by the principles relied on by Mr.Sridharan. Admittedly, the condition sheet attached to DFIA (licence) No.0810119989 at page 34 of the Petition paper book would show that all conditions of the Foreign Trade Policy and Procedures and ITC (HS) classification book as amended shall be applicable unless specifically dispensed with against this authorization. Therefore, this is not a case where the Petitioners can rely on the above principle. This is a case where the Petitioners being fully aware of the fact that the licence may be transferable but it has to comply with all the conditions of the Foreign Trade Policy. Even if the export obligations have been discharged, yet, in the light of this specific condition in the licence itself, we do not see any substance in the challenge raised by the Petitioners. It has been pointed out in the affidavit in reply by the Deputy Director General of Foreign Trade Policy that the policy was to give exemption from Anti-dumping Duty and Safeguard Duty only on actual user basis. Therefore, the actual user would get the benefit of exemption and not necessarily the transferrer. The Petitioner is a purchaser of this transferable licence but it cannot claim as of right the exemption which was admissible to their predecessor in title. If the predecessor in title as well had to comply with the conditions in the Foreign Trade Policy, then, all the more we do not see how there is any substance in the contentions of the Petitioners. The policy itself could have been amended and para 1.3 of the Foreign Trade Policy has been rightly relied upon. Thereunder the Central Government reserves right in public interest to make any amendments to the Foreign Trade Policy. Moreover, section 5 of the Foreign Trade (Development and Regulation) Act, 1992 also permits such a course. Once the Petitioner is placed in such a position, then, we do not see how the principles relied upon can be of any assistance.
34. However, Mr. Sridharan has submitted that the right to import is not a future right. In this case the export obligation was fulfilled prior to 17th September, 2013. That being fulfilled by the predecessor in title under the licence, the right to import accrued by virtue of unamended Notification and that cannot be taken away. Mr. Sridharan has relied upon the duty free import authorization (DFIA) scheme contained in Chapter 4 of the Foreign Trade Policy 2009-2014. He relied upon the entitlement under 4.2.2(b) and submits that transferability in terms of para 4.2.6 is permitted once export obligation has been fulfilled. Once the transferability is endorsed, then, all benefits can be claimed. If exports have been made before 13th April, 2013 or the licence has been issued before 18th April, 2013, then, in terms of the unamended policy, the benefits accrue even to the Petitioner. That is the submission founded on the above dates including 3rd April, 2013, the date of issuance of licence. It may have been purchased on 17th September, 2013 but once the export obligation was fulfilled the exemption is admissible.
35. Mr. Jetly, on the other hand, submits that once the position of the Petitioner as a transferee is noted, then, the above contentions have no substance. He submits that the date of import of the goods cannot be ignored. It is that date which must be held to be the relevant and applicable one. The DFIA scrips would be utilized for a benefit which will now accrue. Mr. Jetly submits that the utilization of the DFIA by the Petitioner is in preasenti. In that sense, the Petitioner can derive no benefit. The Petitioner can only utilize the benefits, if any, prospectively. Mr. Jetly relies upon para 3 of the affidavit in reply at page 40 of the paper book to support the above submissions.
36. There is much substance in the contentions of Mr. Jetly. We do not see how the Petitioner can claim any entitlement or benefit other than those flowing from the duty free import authorization. That is granting exemption to imports into India against such an authorization. However, the exemption from the obligation to pay customs duty under the Customs Act, 1962 is in terms of the powers conferred under section 25(1) of the Customs Act, 1962. It is the custom authorities which have decided to grant exemption to materials imported into India against a duty free authorization. That DFIA is issued in terms of para 4.2.1 and 4.2.2 of the Foreign Trade Policy. The exemption is from whole of the duty of the customs leviable thereon as specified in the first schedule to the Customs Tariff Act, 1975 and from the whole of the Additional Duty, Safeguard Duty and Anti-dumping Duty leviable thereon respectively under section 3, 8B and 9A of the Customs Tariff Act. However, exemption is conditional. The Conditions are set out in the notification dated 11th September, 2009. It is very clear from these conditions that the exemption is not absolute. The obligations in terms of the conditions have to be discharged. Now, even if such authorizations are transferable, we do not see how these conditions attached to the exemption and equally to the license can be disregarded by us. It is clear that the transferee derives certain benefits on the strength of transfer in its favour. The condition sheet attached to the licence itself makes it clear that the exempt goods imported against the authorization would be utilized in accordance with the provisions of para 4.2.2 of the Foreign Trade Policy and other relevant provisions and the Customs Notification as amended from time to time. The authorization holder has to abide by the instructions contained in para 4.3.6 of the HBP, volume-I, 2009-2014. Our attention, therefore, is rightly invited to this condition sheet. In these circumstances, we do not see how any benefits and those presently claimed can be derived by the Petitioner.
37. The judgments cited by Mr. Sridharan need to be noted. Mr. Sridharan has relied upon these judgments to urge that there is no provision either under section 25 of the Customs Act, 1962 or the Foreign Trade Act, 1992 to amend the exemption notification or Foreign Trade Policy retrospectively. We are not in this case concerned with any retrospective amendment as claimed. The Petitioner relies upon the transferability of the DFIA but merely on the strength of the transferability the Petitioner does not derive any benefit. The DFIA may be transferable. However, once the entitlement of the Petitioner is from the transfer being endorsed in its favour, then, this principle cannot be of any assistance to the Petitioner.
38. Equally, we are not required to consider whether any subordinate legislation is being amended retrospectively.
39. In such circumstances, we do not think that the judgments rendered in the case of K. S. Paripoornan V/s. State of Kerala and Others reported in 1994 (5) SCC 593 and in the case of Govind Das and Others V/s. The Income Tax Officer and Another reported in 1976(1) SCC 906 can be of any assistance.
40. These judgments referred to the principle of retrospective operation and whether such operation can be inferred. The principle referred to in these decisions has to be applied, in the event, retrospective operation to a provision is the issue involved. If that is not the issue involved at all, then, the principle can have no application.
41. We cannot in the present case apply this principle merely because the Petitioners desire that it should be so applied. The Petitioners will have to make out a case of any provision applying retrospectively. In the present case, this principle cannot be inferred.
42. Similarly, in the case of M/s. Commissioner of Income Tax, U.P. V/s. M/s. Shah Sadiq and Sons reported in (1987) 3 Supreme Court Cases 516, the issue involved was whether the right which had accrued and had become vested is capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or impliedly. Once again we have not found any vested right in the Petitioners. The right, which had accrued in favour of the transferor itself was conditional. It is the entitlement post such transfer and based on the prior acts of the transferor which is in issue. Even on that count we have found that so long as the transfer in favour of the Petitioners was not endorsed the benefit under the DFIA, if any, could not have accrued at all. If it had accrued upon such endorsement and the transfer was complete on that date, then, any benefit or entitlement accruing prior to that date would not enure for the benefit. Once this position is noted, then, no assistance can be derived by Mr. Sridharan relying on these judgments.
43. Equally, the principle which has been put in issue by relying on the principles of statutory interpretation by Hon'ble Justice G. P. Singh and the passages read out therefrom can have no application in the light of the above position.
44. The other decisions which have been relied on are based on the principle that a subordinate legislation can be given retrospective effect only if such power is conferred on the delegate by the statute under which the notification is issued. These also need not be considered in the facts and circumstances of the present case. The reliance, therefore, on the judgment in the case of BakulCashew Co. and Others V/s. Sales Tax Officer, Quilon and Another reported in (1986) 2 Supreme Court Cases 365 is misplaced.
45. In the case of Sonia Fisheries V/s. Union of India, a decision which has been rendered by a Division Bench of this Court and reported in 1997(90) E. L. T. 22, the factual position was that an advance license was granted to M/s. Sonia Fisheries for import of Kraft paper other than ivory board, cardboard other than ivory board, HDPE/PP Granules, preservatives and raw material for fishing net in accordance with and on the basis of the Export Import Policy for April 1992 to March 1997 and the duty exemption scheme contained therein.
46. The norms were not fixed according to the Petitioners at the relevant time for items of import. The application of the Petitioners for issuance of advance licence was considered by the Advance Licensing Committee for fixation of norms as per the Import Export Policy. The Committee consisted of technical persons. It considered the Petitioners application and as per the said advance licence, the Petitioners were required to export sea food. The first Petitioner in the Writ Petition was issued the requisite Duty Exemption Entitlement Certificate in that behalf which mentioned the details of the items to be imported under the said licence. The Petitioners submitted that on the basis of this licence, the Petitioner No.1 carried out export and submitted bank certificates to the authorities showing the export done and the amount of Foreign Exchange earned. It is their case that the exports were completed before April 1994. On 30th May, 1994, an application was filed for endorsement of this licence for transferability as per Import Export Policy along with the original papers. Instead of endorsing this licence by a letter dated 27th July, 1994 the first Petitioner was directed to surrender the original licence dated 14th September, 1993. That order was challenged in the Writ Petition before this Court and a direction was claimed that the import licence as originally granted be revalidated and the advance licence be transferred for the value corresponding to the export effected and make necessary endorsement in favour of the first Petitioner to that effect or the first Petitioner be permitted to import or cause to be imported the said raw materials without payment of any duty. An order was passed at the time of admission of Writ Petition which was challenged before the Hon'ble Supreme Court and it was pointed out that by granting interim relief the Petition is virtually allowed. It was conceded that in accordance with the new policy licence has been issued to the Petitioners. The Hon'ble Supreme Court in view of these facts directed that the Writ Petition itself would have to be decided. Thereafter this Court noted the rival contentions and in para 8 found that the record indicates that admittedly the advance licence was given to the Petitioners on 14th September, 1993 on the basis of Export and Import Policy in force from April 1992 to 31st March, 1997. Thereafter the record further indicated that the quantity based advance licence was given to the Petitioners on the condition of fulfilling the export obligations. Those were fulfilled. Then, para 51 of the Export and Import Policy was referred to. The Petitioners entitlement in terms thereof has been noted. Then, one of the conditions of the licence was noted. The term indicated that the relevant date for grant of advance licence is the date of issue of licence and the licence was only subject to the condition relating to the goods covered by the licence or amendment thereof made upto and including the date of issue of licence unless otherwise specified. Therefore, this Court held that when the Petitioners have complied with their obligation of export and asked for endorsement of transferability on the basis of complying with the conditions of exporting the goods, the authority was not entitled to withhold or suspend the licence or change the material terms of the licence. It is in that context that this Court held that once the licence terms permitted the Petitioners to import duty free goods, the norms published on 20th January, 1995 would not have retrospective effect enabling cancellation or modification of the licence, then, the Petitioners cannot be called upon to surrender the licence for endorsing the transferability. That would be completely arbitrary.
47. In the above admitted factual backdrop that this Court relied upon the observations made by the Hon'ble Supreme Court in the case of S. B. International Limited Etc. V/s. Asstt. Director General of E.T. and Ors. Etc. reported in 1996 (82) E.L.T. 164. The Hon'ble Supreme Court in that case considered whether a vested right accrues to the Appellant therein for issuance of advance licence as per the value addition norm in vogue on the date of filing of the applications or whether any subsequent change in policy effected before the issuance of licences. This Court relied upon the above judgment of the Hon'ble Supreme Court to hold that grant of advance licences depends upon the policy prevailing as on the date of such grant. Once the licence is granted, it could not be revoked or modified merely on the ground that the value addition norm was changed. We do not see how such a judgment rendered by this Court in the backdrop of the abovenoted facts and circumstances can assist the Petitioners in the present controversy.
48. We are not considering any changes or modifications in terms of a new policy made to advance licence already applied for or granted nor are we considering a case of revocation or modification of the terms of the licence once granted. Hence, even this judgment is of no assistance.
49. We are of the opinion that other judgments relied upon and on the basis of applicability of principle of retroactivity can assist the Petitioners. That is on the footing of applicability of that principle. We do not find that any reference to this principle is necessary and in the present case. Hence, in the light of the above conclusion, the judgments relied on in the case of MRF Ltd. V/s. Assistant Commissioner (Assessment) Sales Tax and others reported in (2006) 8 SCC 702 and Southern Petrochemical Industries Co. Ltd. V/s. Electricity Inspector and Etio and Others reported in (2007) 5 SCC 447 need be referred and in further details.
50. Before parting, we also find no substance in the contentions of Mr. Sridharan that para 2A of the Notification should be read down as inapplicable to any vested rights under authorization issued prior to 18th April, 2013. The argument is that the exports have been effected prior to 18th April, 2013. The transfer in favour of the Petitioners may be after that date but once the obligations have been discharged prior to 18th April, 2013, then, the above para needs to be read down or given a restricted effect.
51. We are unable to agree because para 2A is specific. It is states that with effect from 17th September, 2013 the exemption from Safeguard Duty and Anti-dumping Duty shall not be available in case the materials are imported against the authorization that has been made transferable on or after 18th April, 2013 by the Regional Authority. Admittedly, the Petitioners have effected the imports after the licence was transferred in September 2013, vide a Bill of Entry No.3504275 dated 10th October, 2013. If the imports have been effected post transferability in favour of the Petitioners which is dated 13th September, 2013, then, para 2A cannot be read down and in the manner suggested by Mr. Sridharan. That would be doing violence to its plain language. That course is not permissible in law. The exemption from Safeguard Duty and Anti-dumping Duty is not available simply because the materials are imported against the authorization which has been made transferable on or after 18th April, 2013 by the Regional Authority. In these circumstances, the alternate condition also fails.
52. As a result of the above discussion and for the reasons assigned hereinabove, we do not find any merit in the Writ Petitions. They are, accordingly, dismissed but without any order as to costs. Rule is discharged accordingly.