M/S ECL PUYVAST (INDIA) PVT LTD V. UNION OF INDIA

WP/12068/2021

AI Insights

The case involves two writ petitions filed by M/s ECL Puyvast (India) Pvt Ltd and M/s Puyvast Maritime India Pvt Ltd against the Union of India and other respondents, challenging the validity of Policy Circulars No.06/2018 and No.08/2018 issued by the Directorate General of Foreign Trade (DGFT). These circulars clarified that only actual service providers are eligible for benefits under the Service Exports from India Scheme (SEIS), excluding aggregators like ports. The petitioners, engaged in shipping and logistics services, argued that they were actual service providers and not mere aggregators. The court examined the legal framework of the Foreign Trade Policy, the role of DGFT, and the nature of the services provided by the petitioners, ultimately finding in favor of the petitioners.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 725109 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 25-04-2024
• Assessment Year: misc
• Other Referred Cases: Atlantic Shipping Pvt. Ltd. Vs. Union of India, Ericson India Global Services Pvt. Ltd. Vs. Union of India, Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin, CCE Vs. Ratan Melting & Wires Industries, Vodafone Essar Ltd Vs. Union of India, Tata Communications Ltd. Vs Union of India, Director General of Foreign Trade and Ors. v. Kanak Exports and Ors., Patanjali Foods Ltd. Vs Union of India, Titan Medical Systems Pvt. Ltd. Vs. Collector of Customs, New Delhi, Jeena & Company Vs. Union of India
• Laws Referred To: Foreign Trade (Development and Regulation) Act, 1992, Customs Act, 1962, Foreign Exchange Management Act, 1999, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SAROJINI MUTHANNA
• Assessee Lawyers: G SHIVADASS
• Keywords: Duty Credit Scrips; Foreign Trade Policy; Foreign Trade Policy; Ultra Vires; SEIS scheme; Policy circulars
• Section: 28AAA; 226; 227

Judgement Text

" - 1 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 12068 OF 2021 (T-RES) C/W WRIT PETITION NO. 12044 OF 2021 (T-RES) IN W.P.No.12068/2021 BETWEEN: M/S ECL PUYVAST (INDIA) PVT LTD BROOKLYN BUSINESS CENTRE 4TH FLOOR, WEST WING NO.103-105 POONAMALLEE HIGH ROAD EGMORE, CHENNAI-600 084. REPRESENTED BY ITS AUTHORISED SIGNATORY MR VIVEK KARAN, AGED ABOUT 62 YEARS R/A 12B, REGENCY HEIGHTS 3/2-1 CLEVELAND ROAD, FRAZER TOWN BANGALORE-560 005. …PETITIONER (BY SRI. G. SHIVADASS., SENIOR COUNSEL APPEARING FOR SRI. PRASHANTH SABARISH SHIVADASS.,ADVOCATE) AND: 1. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137, NORTH BLOCK NEW DELHI-110 001. 2. DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAWAN, H WING GATE NO.02, MAULANA AZAD ROAD NEW DELHI-110011 REPRESENTED BY THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE. R Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 3. DIRECTORATE OF REVENUE INTELLIGENCE BANGALORE ZONAL UNIT, NO.8(P)2, 1ST STAGE 3RD BLOCK, HBR LAYOUT, OPP BDA COMPLEX KALYAN NAGAR POST BANGALORE-560 043. REPRESENTED BY THE ADDITIONAL DIRETOR GENERAL. 4. PRINCIPAL COMMISSIONER /COMMISSIONER OF CUSTOMS PREVENTIVE COMMISSIONERATE 55-17-3, C-14, 2ND CROSS INDUSTRIAL ESTATE, AUTONAGAR VIJAYAWADA-520 007. 5. THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE C AND E WING, 6TH FLOOR, KENDRIYA SADAN, 17TH MAIN 2ND BLOCK, KORAMANGALA BANGALORE-560 034. …RESPONDENTS (BY SMT. SAROJINI MUTHANNA., CGC FOR R-1, R-2 & R-5 . SRI. AMITH DESHPANDE., ADVOCATE FOR R-3 & R-4 ) THIS W. P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE POLICY CIRCULAR NOS. 06/2018 DATED 22.05.2018 AND 08/2018 DATED 21.06.2018 ENCLOSED AS ANNEXURE-A, ISSUED BY R2 ON THE GROUND THAT THEY ARE ULTRA-VIRES THE FOREIGN TRADE POLICY 2015-2020. IN W.P.No.12044/2021 BETWEEN: 1. M/S. PUYVAST MARITIME INDIA PVT LTD., PUYVAST HOUSE, NO. 6, HARRIS ROAD BENSON TOWN, BANGALORE – 560 046. (REPRESENTED BY MR. SUBRAMANYA RAO DIRECTOR, AGED ABOUT 54 YEARS. S/O. SHRI SHAMA RAO) 2. SHRI SUBRAMANYA RAO S/O SHRI. SHAMA RAO Y AGED ABUT 54 YEARS R/O. # 1657 A, 13TH MAIN HSR LAYOUT, 7TH SECTOR BENGALURU – 560 102. - 3 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 3. SHRI VENKATESH KAMATH S V S/O LATE VASUDEV KAMATH NO. 40/3, VINAYAKA RESIDENCY GF-C, NAGARABHAVI MAIN ROAD GOVINDARAJ NAGAR, VIJAYANAGAR BANGALORE – 560 040. …PETITIONERS (BY SRI. V. RAGHURAMAN, SENIOR COUNSEL APPEARING FOR SRI. RAGHAVENDRA.C.R.,ADVOCATE) AND: 1. UNION OF INDIA MINISTRY OF COMMERCE AND INDUSTRY REPRESENTED BY SECRETARY UDYOG BHAWAN NEW DELHI – 110 107. 2. CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS DRAWBACK DIVISION 4TH FLOOR, JEEVAN DEEP BUILDING PARLIAMENT STREET NEW DELHI – 110 001. 3. THE DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING, H-WING GATE NO.2 MAULANA AZAD ROAD, NEW DELHI – 110 011. 4. THE JOIN DIRECTOR GENERAL OF FOREIGN TRADE BENGALURU, 6TH FLOOR, KENDRIYASADAN C AND E WING, KORAMANGALA 2ND BLOCK, 17TH MAIN ROAD BANGALORE – 560 034. 5. THE ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE BANGALORE ZONAL UNIT, NO. 8(P) 1ST STAGE, 3RD BLOCK, HBR LAYOUT OPP. BDA COMPLEX, KALYAN NAGAR POST BANGALORE – 560 043. 6. THE PRINCIPAL COMMISSIONER OF CUSTOMS N NHAVA SHEVA-I, JAWAHARLAL NEHRU CUSTOM HOUSE, NHAVA SHEVA, TALUK-URAN, DIST-RAIGAD MAHARASHTRA – 400 707. - 4 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 7. THE PRINCIPAL COMMISSIONER OF CUSTOMS ACC(IMPORT), NEW CUSTOM HOUSE DELHI – 110 037. 8. THE PRINCIPAL COMMISSIONER OF CUSTOMS CUSTOMS HOUSE, MUNDRA, 5B PORT USER BUILDING, MUNDRA PORT MUNDRA, GUJARAJ – 370 421. 9. THE PRINCIPAL COMMISSIONER OF CUSTOMS CUSTOM HOUSE, NEAR BALAJI TEMPLE KANDLA, GUJARAT – 370 210. …RESPONDENTS (BY SRI. AMITH DESHPANDE, ADVOCATE FOR R-1, R-2, R-5 TO R-9 SRI. S.V. DESAI., CGC FOR R-3 & R-4) THIS W. P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE POLICY CIRCULAR BEARING NO. 06/2018 DATED: 22.05.2018 ENCLOSED AS ANNEXURE-A AND THE IMPUGNED POLICY BEARING NO. 8/2018 DATED: 21.06.2018 ECNLOSED AS ANNEXURE-B BOTH ISSUED BY R-3 SEEKING TO ADD ADDITIONAL CONDITIONS TO THE SEIS SCHEME AS ULTRA VIRES THE PROVISIONS OF FOREIGN TRADE POLICY 015-2020 ISSUED UNDER THE PROVISIONS OF FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT 1992 AND ETC. THESE PETITIONS ARE BEING HEARD AND RESERVED ON 02.02.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER In W.P.No.12044/2021, petitioner has sought for the following relief’s: “a) Issue a writ of certiorari or any other appropriate writ or direction declaring the Policy Circular bearing No. 06/2018 dated: 22.05.2018 enclosed as Annexure-A and the impugned Policy Circular bearing No. 8/2018 dated: 21.06.2018 enclosed as Annexure-B both issued by respondent, seeking to add additional conditions to the - 5 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 SEIS scheme as ultra vires the provisions of Foreign Trade Policy 2015-2020 issued under the provisions of Foreign Trade (Development and Regulation) Act 1992; b) Issue a writ of certiorari or any other appropriate writ or direction declaring the Policy Circular bearing No.06/2018 dated 22.05.2018 enclosed as Annexure-A and the impugned Policy Circular bearing No.08/2018 dated 21.06.2018 enclosed as Annexure B both issued by third respondent as violative of Articles 14/19/300a of the Constitution; c) Issue a writ of certiorari or any other appropriate writ or direction declaring the Notification No.44/2011 Customs (N.T.) dated 06.07.2011 enclosed as Annexure C issued by second respondent as ultra vires the provisions of the Customs Act, 1962; d) Issue a Writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ, order or direction to quash the Show Cause Notice vide SCN No.05/2021 dated .23.02.2021 issued by the Respondent No.5 and enclosed as Annexure D as being without jurisdiction. e) Issue a Writ of Mandamus or any other appropriate writ or direction to the Respondent No.4 to process and issue SEIS scripts for the years 2017-18 onwards in terms of the applications made by the Petitioner No.1.” In W.P.No.12068/2021, petitioner has sought for the following relief’s: - 6 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 “a) To issue order(s), directions, writ(s), in the nature of Certiorari quashing the Policy Circular Nos. 06/2018 dated 22.05.2018 and 08/2018 dated 21.06.2018 enclosed as Annexure-A, issued by Respondent No.2 on the ground that they are ultra-vires the Foreign Trade Policy 2015- 2020. b) To issue order(s), directions, writ(s), setting aside the Show Cause Notice F.No.DRI/BZU/S-IV/ENQ-41/INT- NIL/2019 dated 28.01.2021 vide Annexure-B issued by the Respondent No.3 on the ground that the same is without any legal basis and also has been issued without jurisdiction; c) To issue order(s), directions, writ(s), in the nature of Mandamus directing Respondent No.2 to grant duty credit scrips amounting to Rs.68,21,3036/- sought by the Petitioners for the period 2017-18; d) To issue order(s), directions, writ(s), in the nature of Mandamus directing the Respondent No.2 to grant refund of Rs.74,05,477/- (Rupees Seventy-Four Lakhs Five Thousand Four Hundred and Seventy Seven only) paid under protest along with applicable interest. e) To issues order(s), directions, writ(s) or any other relief as this Hon'ble Court deems it fit and proper in the facts and circumstance of the case in the interest of justice.” 2. Since common questions of law and fact arise for consideration in both the petitions, they are taken up together and disposed off by this common order. - 7 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 3. Briefly stated, the facts giving rise to the petitions are as under: Petitioner No.1 In W.P.No.12044/2021 is a private limited company represented by its Directors, petitioners 2 and 3 who have entered into an Agency Agreement dated 03.03.2005 with M/s.Puyvast Chartering BV Netherlands to undertake the activities of arranging for berthing of vessels, loading and unloading of cargo and other works contemplated in the agreement for the vessels belonging to Puyvast Chartering BV Netherlands. In this connection, the 1st petitioner engages various service providers and co-ordinates to provide above referred scope of services. In this petition, 1st respondent is the Union of India and 2nd respondent is the Central Board for Indirect Taxes and Customs. So also, respondents 3 and 4 are Director General for Foreign Trade(DGFT) and Joint Director General for Foreign Trade respectively, while 5th respondent is the Additional Director General of Revenue Intelligence(DRI-Customs) and respondents 6 to 9 are also the Customs authorities. 3.1 Petitioner in W.P.No.12068/2021 is engaged in the business of providing shipping related logistic services from India, for M/s ECL Singapore Pvt. Ltd, and for this purpose, the petitioner - 8 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 is registered with the 2nd Respondent-Director General of Foreign Trade(DGFT) and has obtained an Importer Exporter Code and the 4th Respondent is the Joint Director General of Foreign Trade, while the Union of India is arrayed as the 1st respondent. In this petition, the Additional Director General of Revenue Intelligence (DRI-Customs) and the Principal Commissioner(Customs) are arrayed as respondents 3 and 4 respectively. 4. For the purpose of convenience, the contesting respondents in both the petitions are referred to as DGFT and DRI- Customs. 5. A perusal of the material on record will indicate that Chapter 3 of Foreign Trade Policy(FTP) for the period 2015-2020 inter-alia provides an incentive scheme i.e., Service Exports from India Scheme(SEIS) to maximize and promote exports of services from India and also to boost inflow of foreign exchange in India. The SEIS incentive is provided in the form of duty credit scrips to the exporters for the services exported by the exporters. These duty credit scrips can be utilized by the exporter to set off their import duties or can be sold to other third parties, who in turn could use the said scrips to set off their import duties. - 9 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 6. The 1st petitioner in W.P.No.12044/2021 opted for SEIS and claimed duty credit scrips by filing an application in FORM ANF-3B for the periods 2015-2016 and 2016-2017. The office of Joint Director General of Foreign Trade after verifying the documents, seeking necessary clarifications, issued scrips to the tune of Rs. 1,01,63,937/- and Rs. 2,06,15,512/- vide authorization letter 21.02.2018 and 19.07.2018 respectively. The said scrips granted for the year 2015-16 are transferred to M/s Ruchi Soya Industries and for the year 2016-17 to M/s Diamond Forever International, M/s Adani Wilmar Ltd. and M/s Deepak Agro. 7. Petitioner in W.P.No.12068/2021 has claimed duty credit scrips worth Rs.1,46,24,809/- for the period 2015-2018. Upon scrutiny of the requisite documents and seeking necessary clarifications, the 2nd respondent granted the Duty credit scrips until the year 2017 amounting to Rs. 74,05,493/-. The petitioner has utilized duty credit scrips amounting to Rs. 4,52,491/- and sold the remainder of the scrips with a face value of Rs. 69,53,002/- to M/s Oza & Co. which further sold the scrips of the same value to M/s.Gemini Edibles & Fats India Private Limited. Thus, the petitioner by themselves and M/s.Gemini Edibles and Fats India - 10 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Pvt. Ltd., have both utilized a total duty credit scrip of Rs. 74,05,477/- out of a total scrip allotted of Rs. 74,05,493/-. 8. The DGFT issued the impugned Policy Circular No.6/2018 dated 22.05.2018 inter alia clarifying the fact that the SEIS is eligible only for actual service provider and not eligible for aggregators of service providers like ports, etc. The DGFT also issued the impugned Policy Circular No.8/2018 dated 21.06.2018 inter alia clarifying that service aggregators are not eligible and such service providers cannot claim the benefit to the extent of foreign exchange earnings simply routed through them for making payments for services rendered by other service providers like Port Trust, etc. 9. It is contended by the petitioner in W.P.No.12044/2021 that based on the aforesaid impugned circulars, the DRI-Customs initiated investigation against the petitioner and issued the impugned show cause notice bearing No. 05/2021 DRI BZU dated 23.02.2021 proposing to demand an amount equal to the duty scrips granted for the years 2015-16 and 2016-17 alleging that the petitioner is only an aggregator of services and not an actual service provider. Further, the DRI-Customs also instructed the - 11 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 DGFT to not to process the SEIS application for the subsequent year. 10. It is contended by the petitioner in W.P.No.12068/2021 that the DGFT has denied grant of Duty credit scrips in favour of the petitioner for the year 2017-18 relying on the impugned circulars by stating that only actual service providers and not aggregate service providers i.e., Ports are eligible as beneficiaries under the SEIS scheme in respect of their share earnings made by performing the notified services under the SEIS. Further, DRI- Customs also issued a Show Cause Notice dated 28.01.2021 alleging that the Petitioner had wrongly and illicitly obtained the duty credit scrips issued by the DGFT under SEIS after professing to have rendered port related services at different ports in India. In pursuance of the same, the DRI-Customs vide letter dated 15.01.2021 communicated to DGFT not to issue the SEIS benefits for 2017-18 for Rs 68,21,306/- in light of the ongoing investigation. 11. Aggrieved by the impugned Policy Circulars No.6/2018 dated 22.05.2018 and No.8/2018 dated 21.06.2018 issued by the DGFT as well as the impugned show cause notices issued by the - 12 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 DRI-Customs and seeking further directions, petitioners are before this Court by way of the present petitions. 12. The respondent - DRI-Customs have opposed the petitions by filing their statement of objections, in which it is contended that even without reference to the circulars, the notice clearly brings out the reasons for ineligibility of the SEIS scrips and the circulars being clarificatory, it does not change the eligibility for the petitioners. It is further contended that the petitioners do not have requisite licences from statutory authorities to perform services. It is also contended that suppression is clearly brought about in the show cause notices which can be agitated in Departmental proceedings. It is contended that the petitioners are only routing payments and have not rendered any services and that it is imperative for the petitioners to have exported services to claim the benefits of SEIS and being aggregators, they could not claim the said benefits. It is therefore contended that there is no merit in the petitions and that the same are liable to be dismissed. 13. The respondent-DGFT have also contested the petition by filing their statement of objections, wherein they have detailed the scheme as having been made for the benefit of exporters. They - 13 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 have asserted that the benefit is not meant for aggregators and that is why the policy circulars were correctly issued. It is stated that the petitioners were not the actual service providers and therefore, they could not claim the benefits of the said scheme. The policy circular is clarificatory in nature and only tries to amplify what the Policy lays out and the FTP is a policy meant to give SEIS benefits to the actual exporter. It is therefore contended that there is no merit in the petitions and that the same are liable to be dismissed. 14. The petitioners have filed a detailed rejoinder, wherein it is stated that policy circulars cannot deny benefits of the FTP on the ground that it is clarificatory. The petitioners undertake the port related activities on behalf of the foreign principal in India and they are remunerated for the ultimate responsibility of ensuring that the services are rendered by them. Therefore, it is wrong to say that they are only aggregators as they are providing several services and only certain skilled services are outsourced. Even otherwise, the FTP does not lay out any distinction between aggregators and other service providers. DGFT has given the scrips after due verification only and therefore, the question of fraud, suppressions cannot arise. Since they undertake the risk of the job being done, - 14 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 there is no question of them being called aggregators. That the decision of the Bombay High Court in the case of Atlantic Shipping Pvt. Ltd. Vs. Union of India and others-2021-TIOL- 582-MUM-Cus is clearly applicable and the reasons given in the affidavit do not distinguish the same. Since the SCN issued does not do anything more than rely on the two circulars, it deserves to be quashed. In reply to the objections taken by the DGFT, it is contended by the petitioners in their counter that merely because some services are outsourced does not render them aggregators at all. Since they are responsible for the entire work and they are doing the same, the question of denial does not arise. Since the policy circulars actually deny the benefits given by the FTP, therefore, they have to be quashed. 15. The DRI-Customs have filed a sur-rejoinder, wherein the points relating to the case are summarised and it is stated that there is clear suppression and the show cause notices are independent of the circulars and that jurisdiction to issue notices consequent to Cannon India and the further amendments made rests with the DRI. It is also stated that the petitioners are only - 15 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 intermediaries and not service providers and that the petitions are liable to be dismissed. 16. I have heard the learned Senior counsel Sri.V.Raghuraman along with learned counsel, Sri.J.S.Bhanumurthy in W.P.12044/2021 and learned counsel Sri.Prashant Shivadass in W.P.12068/2021 as well as the learned counsel for the DGFT and DRI-Customs and perused the material on record. 17. In addition to reiterating the various contentions urged in the petitions and referring to the material on record, learned Senior counsel and learned counsel for the respective petitioners submit that the impugned circulars and impugned show cause notices deserve to be quashed. They would elaborate their submissions as hereunder: • The power to formulate and amend FTP is with the Central Government and neither DGFT could amend the FTP through policy circulars nor such powers to amend could be delegated by the Central Government to DGFT. • Circulars cannot restrict the scope of statutory provision/notification by reading into them a condition which - 16 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 is not provided for by the specific language of the statute and restricting the scope of the SEIS benefit through circulars is colorable excise of power, which is ultra vires the FTP. • Circulars are contrary to the provisions of FTP as the services provided by the petitioners fall under “Maritime Transport Services” and “Supporting Services for Maritime Transport” as notified in Appendic-3D, and the said services are tradeable services as envisaged in the GATS. • While considering eligibility to claim SEIS benefit for shipping support services, similar to the nature of services supplied by the petitioners, the Bombay High Court in Atlantic Shipping’s case supra, has held that the circulars are ultra vires the provisions of FTP 2015-20 and allowed the benefit in favour of the writ petitioners. • Similar circular issued by the DGFT restricting the SEIS benefits to telecom service provider has been quashed by the Delhi High Court in the case of Ericson India Global Services Pvt. Ltd. Vs. Union of India and others - 2021- TIOL-998-HC-DEL-CUS. • The impugned circular is contrary to the statutory provisions of Foreign Exchange Management Act, 1999 also, as an - 17 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 attempt is made to introduce new method of issuance of certificate of receipt of foreign exchange, which is impermissible and also contrary to the provisions of FEMA and regulations made thereunder. • The impugned policy circulars are arbitrary and unreasonable being violative of Article 14 of the Constitution of India, as the circulars seeks to differentiate service providers as actual service providers and aggregators, which is not envisaged in the FTP. • The petitioners are actual service provider and merely because the petitioners get the services undertaken by engaging other service providers, the petitioners cannot be termed as aggregators and be denied the benefits. • Policy circulars are prospective in nature, cannot be applied to the transactions already concluded. • That the invocation of Section 28AAA of the Customs Act, 1962 in the show cause notice is without jurisdiction as the necessary foundational facts are absent. In order to invoke Section 28AAA, it is necessary to show that the scrips have been cancelled by the DGFT and in the absence thereof, the action of the customs authorities is premature. - 18 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 17.1 In support of their submissions, reliance is placed upon the following judgments: i) Atlantic Shipping Pvt. Ltd. Vs. Union of India and others, 2021-TIOL-582-MUM-Cus; ii) Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin, 2009 (235) E.L.T. 385 (S.C.); iii) Ericsson India Global Services Pvt Ltd Vs Union of India and Ors 2021-TIOL-998-HC-Del-Cus; iv) CCE Vs. Ratan Melting & Wires Industries, (2008) 13 SCC 1; v) Vodafone Essar Ltd Vs. Union of India, 2011 SCC Online Bom 728; vi) Tata Communications Ltd. Vs Union of India, 2012 (25) S.T.R. 131 (Bom); vii) Tata Teleservices Ltd. Vs. Commissioner Central Excise, Belgaum 2008 (229) ELT 641 (SC); viii) GTC Industries Ltd Vs. Commissioner of Central Excise 2017 (351) ELT 8 (Guj); ix) Director General of Foreign Trade and Ors. v. Kanak Exports and Ors. reported at 2015 (326) ELT 26 (S.C.). 18. Per contra, learned counsel for the DGFT and DRI- Customs would reiterate the various contentions urged in their statement of objections and submit that there is no merit in the petitions and that the same are liable to be dismissed. - 19 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 19. I have given my anxious consideration to the rival contentions/submissions and perused the material on record. 20. In my considered opinion, the impugned circulars and show cause notices are illegal, arbitrary and contrary to law apart from being without jurisdiction or authority of law and the same deserve to be quashed for the following reasons: (i) The impugned Policy Circulars No.6/2018 dated 22.05.2018 and No.8/2018 dated 21.06.2018 issued by the DGFT have already be declared as illegal, invalid and ultra rvires the FTP by the Bombay High Court in Atlantic Shipping’s case supra, wherein it is held as under: “16. We may state that section 5 of the FT (D&R) Act provides that the Central Government may from time to time formulate and announce the Exim Policy by issuing notification in the official gazette. Thus, it is the Central Government which has power to amend the policy by adopting the procedure as stated in the Act; the power to announce the policy and to amend as such solely remains within the domain of the Central Government and cannot be delegated. 17. Chapter 1 paras 1.01, 1.02 and 1.03 of the Foreign Trade Policy 2015-20 are also relevant. In para 1.01 of the FTP, it is stated that in pursuant of the provisions of - 20 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 para 1.03 of the FTP, DGFT notifies the procedure to be followed by an exporter or importer or by the licensee / regional authority or by any other authority for the purpose of implementing the provisions of FT (D&R) Act, the rules / orders made thereunder and the provisions of FTP. Such procedure is contained in the Hand Book of Procedures (HBP) and Appendices and Aayat Niryat forms and Standard Input Output Norms (SION) as amended from time to time. Para 1.02 of the FTP relates to amendment to FTP and states that Central Government in exercise of powers conferred by section 5 of the FT (D&R) Act 1992, as amended from time to time, reserves the right to make any amendment to the FTP by means of notification in the public interest. Para 1.03 relates to Hand Book of Procedures and Appendices and Aayat Niryat forms. 17.1. From a conjoint reading of the above statutory provisions it is clear that for any amendment to alter or modify the provisions of FTP 2015-20, the powers are exclusively vested in respondent No. 1 i.e the Central Government in terms of section 5 of the FT (D&R) Act, 1992. In such circumstances we have to examine as to whether by way of the two impugned policy circulars any new conditions or restrictions can be added or read into the FTP or whether respondent Nos. 2, 3 and 6 can add / alter / amend the provisions of the FTP without recourse to exercise of powers conferred by section 5 of the FT (D&R) Act upon the Central Government. - 21 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 18. By virtue of the two circulars, modification and alteration of provisions of para 3.08(c) of the FTP 2015-20 has been made which stipulates the provisions of deeming INR earning as foreign exchange in terms of the Reserve Bank of India guidelines. Policy Circular No. 8/2018 dated 21.06.2018 clearly overrides the authority of the Reserve Bank of India and an attempt is made to introduce a provision for issuance of a certificate by the petitioner enabling the local domestic service provider, such as, ports to deem their INR billing as in foreign exchange. Such overriding policy decisions in our view would require an amendment in the FTP 2015-20 and as mandated under the provisions of section 5 of the FT (D&R) Act would have to be carried out only by the Central Government. 19. The two impugned policy circulars clearly curb the right of the petitioner as an independent foreign exchange earner for the purposes of FTP 2015-20 and its consequential SEIS benefits in conformity with para 3.08(d) of the FTP. The designation or description of the petitioner as \"aggregator\" of services purchased by them is not in conformity with the underlying ethos of the FTP 201520 read with the FT (D&R) Act, 1992. 20. We also have to bear in mind the objective of the Exports from India Schemes as envisaged in para 3.00 and the objective of Service Export from India Scheme (SEIS) as envisaged in para 3.07 in consonance with the eligibility criteria stated in para 3.08 of Chapter 3 and the definition of 'service provider' provided in para 9.51 of the FTP. The said - 22 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 relevant provisions are reproduced hereunder :Exports from India Scheme; \"3.00 Objective The objective of schemes under this chapter is to provide rewards to exporters to offset infrastructural inefficiencies and associated costs. 3.07 Objective Objective of Service Exports from India Scheme (SEIS) is to encourage and maximize export of notified Services from India. 3.08 Eligibility (a) Service Providers of notified services, located in India, shall be rewarded under SEIS. Only Services rendered in the manner as per Para 9.51(i) and Para 9.51(ii) of this policy shall be eligible. The notified services and rates of rewards are listed in Appendix3D. (b) Such service provider should have minimum net free foreign exchange earnings of US$ 15,000 in year of rendering service to be eligible for Duty Credit Scrip. For Individual Service Providers and sole proprietorship, such minimum net free foreign exchange earnings criteria would be US$10,000 in year of rendering service. (c) Payment in Indian Rupees for service charges earned on specified services, shall be treated as receipt in deemed foreign exchange as per guidelines of Reserve Bank of India. The list of such services is indicted in Appendix 3E. - 23 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 (d) Net Foreign exchange earnings for the scheme are defined as under: Net Foreign Exchange = Gross Earnings of Foreign Exchange minus Total expenses / payment / remittances of Foreign Exchange by the IEC holder, relating to service sector in the Financial year. (e) If the IEC holder is a manufacturer of goods as well as service provider, then the foreign exchange earnings and Total expenses / payment / remittance shall be taken into account for service sector only. (f) In order to claim reward under the scheme, Service provider shall have to have an acting IEC at the time of rendering such services for which rewards are claimed. 3.10. Entitlement under SEIS Service Providers of eligible services shall be entitled to Duty Credit Scrip at notified rates (as given in Appendix 3D) on net foreign exchange earned. 9.51 \"Service Provider\" means a person providing : (i) Supply of a 'service' from India to any other country; (Mode 1 - Cross border trade ); (ii) Supply of a 'service' from India to service consumer(s) of any other country in India; (Mode 2 - Consumption abroad); - 24 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 (iii) Supply of a 'service' from India through commercial presence of any other country. (Mode 3 - Commercial Presence); (iv) Supply of a 'service' from India through the presence of natural persons in any other country. (Mode 4 - Presence of natural persons.)\" 21. On thorough consideration of the above statutory provisions together with the definition of 'service provider' and the provisions of the Exports from India Schemes pertaining to eligibility, it is clearly discernible that the petitioner's activity falls within the definition of 'service provider' and is therefore eligible for benefit / reward under SEIS. We may also refer to the application form ANF3B for seeking benefit under SEIS filed by petitioner which is annexed at page 89 of the paper book. This application form states that the petitioner has been registered for the following products/services in terms of its main line of business: (i) marine transport service; (ii) rental of commercial vehicles with operator; (iii) road transport services - passenger transportation and (iv) supporting services for road transport services. 22. That apart we may also refer to the return filed by the petitioner under section 70 of the Finance Act, 1994 read with rule 7 of the Service Tax Rules, 1994 i.e form ST-3 (revised) wherein the petitioner has applied for - 25 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 computation of service tax as a steamer agent service as taxable service (s) for which tax is being paid for the entire gross amount for which bills / invoices / challans or any other documents are issued relating to services provided or to be provided (including export of service and exempted service) for all services. It would therefore be wrong to hold that the petitioner has been appointed by its foreign client as a mere agent to pay to the actual service providers in view of the definition of the word 'services' and 'service provider' in paras 9.50 and 9.51 alluded to herein above. Further it would also be incorrect to hold that the petitioner is merely an agent of its foreign client to the extent of receiving the foreign exchange in its bank account and disbursing the same to the actual service providers. The work agency contract entered into by the petitioner with its foreign client clearly stipulate and prescribe in detail the duties and functions that are required to be carried out by the petitioner; as such the petitioner is directly responsible for carrying out the said duties and functions. In fact, it is the petitioner who is directly responsible to ensure that it carries out its duties and functions to the satisfaction of its foreign client in terms of the work agency contract. The petitioner therefore qualifies to be a service provider of the notified services as contemplated under para 3.08 of the SEIS. That apart the conditions of eligibility in para 3.08 of the SEIS for availing benefits under the scheme are fulfilled by the petitioner to be a service provider of the notified services in as much as petitioner had provided the notified services and that petitioner should had a - 26 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 minimum net free foreign exchange earning of US dollars 15,000 in a year of rendering service. Once the above eligibility criteria is fulfilled by the petitioner as service provider in respect of the services stated in Appendix 3D and 3E, there is no doubt left that the petitioner is a service provider under the FTP. 23. It is submitted by the respondents that the benefit / reward is to be construed only in respect of the net foreign exchange which would be calculated after deducting the net foreign exchange agency fee received by the petitioner for the other charges given to the actual service providers by the petitioner. With respect we cannot agree to this submission for more than one reason. Firstly, having regard to what we have discussed above, this would not be a permissible interpretation. For this reason we would like to refer to para 22 in the case of Vodafone Essar Ltd (supra) which has clearly distinguished such a submission. Paragraph 22 of the said judgment reads thus:- \"22. The learned ASG sought to submit that for the purposes of clause 3.6.4.3 the amount earned must refer to the net amount earned. Ex-facie, this would not be a permissible interpretation. For one thing, the amount earned cannot be different while defining entitlement and for determining eligibility. The amount earned can only mean the same thing, while applying the conditions of eligibility and for defining the extent of the entitlement. Secondly, where the Foreign Trade Policy postulates that a net foreign exchange earning should be computed, express provisions to that effect have been made by the Policy. For instance, in paragraph 6.5 of Chapter VI which relates interalia to export oriented units and paragraph 7.4 of Chapter VII which deals with Special - 27 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Economic Zones, the policy has made a reference to net foreign exchange (NFE). Similarly, an NFE criterion has been provided for in paragraph 7.A.7 of Chapter VII.A which deals with free trade and warehousing zones. Clause 9.4(1) of Chapter IX defines NFE to mean net foreign exchange earning. Advisedly, the policy has not used the expression “net foreign exchange earning” either while defining the conditions of eligibility or the conditions of entitlement for the Served From India Scheme. Where the same policy document employs two distinct phrases, each of those phrases must be given a separate meaning according to its plain and natural interpretation. For the purposes of defining eligibility and entitlement under SFIS, the words that have been used are `total free foreign exchange earning’ and `free foreign exchange earned’. The Central Government while defining the extent of the entitlement has confined it to ten per cent of the free foreign exchange earned. If the Government intended to restrict the entitlement to ten per cent of the net foreign exchange earned, it could have so stipulated. The concept of net foreign exchange earned was present to the mind of the Union Government when it formulated the policy since it had adopted that concept in other parts of the policy. Not having adopted that concept in formulating eligibility and entitlement under the SFIS, it would not be possible to restrict the benefits of SFIS with reference to the concept of net foreign exchange earning. Any action to that effect would not amount to an interpretation of the policy, but would involve a modification, amendment or change of the policy.\" 23.1. From a reading of the above intention of the legislature to restrict the policy in formulating the eligibility and entitlement condition is clearly discernible. It would therefore not be possible for us to restrict the benefit of SEIS with reference to the concept of net foreign exchange as canvassed by the respondents as the same would result in an amendment or change in the policy. - 28 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 24. In view of the above discussion and findings, we hold and order as under: (i) Circular Nos. 06/2018 dated 22.05.2018 and 08/2018 dated 21.06.2018 in so far as they seek to add and amend the provisions of the FTP 2015-20 by inserting additional conditions to curtail the rights / benefits claimed by the petitioner as service provider are ultra vires the Foreign Trade Policy for 2015-20; (ii) Impugned order of refusal dated 25.10.2018 passed by the Additional Director of Foreign Trade, Mumbai cannot be sustained and is accordingly quashed and set aside; (iii) Show Cause Notice dated 10.05.2019 issued by respondent No.4 is quashed and set aside; (iv) Show Cause Notice dated 30.05.2019 issued by respondent No.6 is quashed and set aside.” (ii) I am in complete agreement with the above judgment of the Bombay High Court holding that the policy circulars cannot bring about additional conditions which are not present in the Foreign Trade Policy and they cannot supplant conditions not envisaged in a statutorily recognized scheme. In the instant case, the material on record clearly establishes that the petitioners are rendering services and they cannot be denied the benefit by a bald - 29 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 assertion to the contrary and consequently, in the light of the judgment of the Bombay High Court supra, the impugned policy circulars deserve to be quashed. (iii) In the case of Ericson India Global Services Pvt. Ltd. Vs. Union of India and others 2021-TIOL-998-HC-DEL-CUS, a similar policy circular issued by the DGFT restricting the SEIS benefits to telecom service providers has been quashed by the Delhi High Court. (iv) The impugned policy circulars are ultra vires the FTP 2015-2020 and Section 5 of Foreign Trade (Development Regulation) Act, 1992; in this context, it is relevant to state that the power to formulate and amend FTP is with the Central Government and neither DGFT could amend the FTP through policy circulars nor such power to amend could be delegated by the Central Government to DGFT as held in the following judgments: • Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin, 2009 (235) E.L.T. 385 (S.C.) [Para 18] • Sandoz Pvt. Ltd., Vs. Union of India 2022 (379) E.L.T. 279 (S.C.) [Para 26] • CCE Vs. Sri Exports 2021 (375) E.L.T. 169 (Kar.)[Para 6-7] - 30 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 • Ericsson India Global Services Pvt Ltd Vs Union of India and Ors 2021-TIOL-998-HC-Del-Cus [Para 18-37] • Director General of Foreign Trade and Ors. v. Kanak Exports and Ors. reported at 2015 (326) ELT 26 (S.C.)[Para 6-8] • Patanjali Foods Ltd. Vs Union of India, (2023) 4 Centax 268 (Kar.) (v) In Patanjali Food’s case supra, this Court held as under: “ 8.3 A perusal of the aforesaid provisions of the FTP will clearly indicate that the impugned condition i.e. ‘condition x’ is clearly diametrically opposite, violative and contrary to the provisions of Para2.13 of the Foreign Trade Policy, inasmuch as, while Para2.13 of the FTP permits clearance of goods shipped/imported prior to issuance of TRQ licence, the impugned ‘condition x’ in the Public Notice dated 14.06.2022 stipulates that only import consignments landing at Indian Ports after the date of issuance of TRQ license shall only be considered for clearance under TRQ and any quantities lying at the Indian ports (under warehousing etc) before the date of issuance of the TRQ license shall not be considered for import clearance under TRQ and consequently, the subject ‘condition x’ is contrary to Para2.13 of FTP and the same cannot be sustained in law, particularly when the Hand Book of Procedure is meant to lay down the procedure for implementation of the FTP and the same cannot override the provisions of the FTP - 31 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 which is formulated and framed by the Central Government and not by the DGFT. 9. It is significant to note that as per Para 1.02 of the FTP, only the Central Government can amend the FTP by means of Notification, in public interest; further, as per Para1.03 and Para2.04 of the FTP, the DGFT by means of Public Notice can notify and amend only the Hand Book of Procedure, amongst others, for laying down the procedure to be followed by an exporter or importer for the purpose of implementation of the FTP. In other words, while the power to amend the FTP vests solely and exclusively with the Central Government, the DGFT has the power to issue a Public Notice prescribing and amending only the procedure; in this context, a perusal of the Public Notice dated 24.05.2022 issued by the DGFT will clearly indicate that he traces his power to Para1.03 and Para 2.04 of the FTP for the purpose of issuing the Public notice; similarly, even in the Public Notice dated 14.06.22 containing the impugned ‘condition x’, the DGFT traces his power only to Para 1.03 and Para 2.04 of FTP and in both the aforesaid Public notices, he does trace his power to the FTDR Act. 10. It follows there from that the power and jurisdiction to issue Public Notice stipulating the procedure and amending the same by the DGFT is circumscribed and traceable only to the FTP and consequently, the DGFT does not have jurisdiction or authority of law to stipulate any condition contrary to the FTP and which has the effect of amending, modifying or altering the FTP, thereby establishing that - 32 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 ‘condition x’ in the Public Notice dated 14.06.22 being contrary to Para 2.13 of FTP, the same clearly tantamounts to amending the provisions of the FTP, which power cannot be exercised by the DGFT, especially when the power to amend the FTP is within the sole domain of the Central Government and not by the DGFT and on this ground also, the impugned ‘condition x’ and consequential condition in the TRQ issued in favour of the petitioner deserve to be quashed. 11. The contention of the Respondents that DGFT / Respondent No.2 had issued Public Notice No.15/2015-20 dated 14.06.2022 in his capacity as Ex-officio Additional Secretary to the Government of India and had authenticated the same cannot be accepted; in the instant case, the DGFT has issued aforesaid Public Notice dated 14.06.2022 which makes it evident that the decision was taken by DGFT while amending Para 2 of Public Notice dated 24.05.2022 while incorporating amongst others ‘condition x’ therein, in terms of Para1.03 and 2.04 of FTP, whereby DGFT can only amend the Handbook of Procedure. However while doing so, the DGFT has purported to amend the provisions of FTP, which power is not in the domain of DGFT and hence, the impugned ‘condition x’ cannot be sustained in law. 12. As per Section 3(2) of FTDR Act, only the Central Government can make provision for prohibiting, restricting or otherwise regulating the import or export of goods or services or technology. The contention of the Respondents - 33 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 that in terms of Section 9 of the FTDR Act, the DGFT can impose conditions and restrictions in license cannot be accepted, as only the Central Government can make provision for prohibiting, restricting or otherwise regulating import or export of goods. Issuance of license is only procedural aspect and in any case, the DGFT cannot impose conditions and restrictions in license which are contrary to FTP and FTDR Act and any such condition cannot be sustained in law. On this score also, the impugned ‘condition x’ is not sustainable in law. 13. Under similar circumstances in Kanak Export’s case supra, the Apex Court held as under: 2. Vide Notification No. 28 dated 28-1-2004, 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 28-1-2004, 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 21-4- 2004 was published under Section 5 of the Act on the same lines on which Public Notice dated 28-1- 2004 was issued. The exporters of these goods, naturally, felt aggrieved thereby. There was an innocuous amendment to Notification No. 38 dated 21-4-2004 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 - 34 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Courts, particulars whereof shall be taken note of hereinafter at the appropriate stage. 6. 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.” 7. 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 DGFT even to other officers subordinate to DGFT, except for powers conferred under Sections 3, 5, 15, 16 and 19 of the Act. 8. 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 the provisions of the Act, the Rules, the Orders and the EXIM Policy. The 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 Section 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 - 35 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 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 subsection (2) of Section 19. This power of the Central Government also cannot be delegated. 9. 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. 10. The EXIM Policy of 2002-2007 was announced and came into force from 1-4-2002. Amendment to this Policy was notified on 31-3-2003 and the revised edition of the Policy was to come into force from 1-4-2003. 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. 11. 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 the 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 inconsistent 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: - 36 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 (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.” 12. 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 licensee 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 (Vols. I & 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. 86. The next issue relates to the validity of the Public Notice dated 28-1-2004. The question that is posed for determination on this issue is as to: III. Whether Public Notice dated 28-1-2004, issued by DGFT, which sought to exclude the export performance related to class of goods, is without jurisdiction? 87. The main submission of the petitioners, which was before the High Courts as well and reiterated before us, - 37 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 was that the Public Notice dated 28-1-2004 seeks to amend the EXIM Policy and DGFT does not have any such power inasmuch as this EXIM Policy is statutory which is issued under Section 5 of the Act by the Central Government and, therefore, it is only the Central Government which has the power to make amendments to the EXIM Policy. Therefore, the Public Notice issued by DGFT dated 28-1-2004 was without jurisdiction. An additional ground of retrospectivity was also taken to challenge the public notice. It was also argued that DGFT by the said public notice was seeking to impose additional conditions, not forming part of the original policy which was again impermissible. 88. Mr Adhyaru, learned Senior Counsel appearing for the Union of India, on the other hand, submitted that the paramount consideration in issuing the public notice was to check unscrupulous exporters including the writ petitioners from inflating their export turnover by adopting dubious methods. He emphasised the rational for inclusion of four items by this public notice which has already been taken note of. His endeavour was to demonstrate that issuance of the public notice in question became paramount to cluck unscrupulous methodology adopted by certain exporters with the objective to wrongfully acquire the benefits of the Schemes that could not be countenanced and had to be checked. We are not delving with those alleged malpractices and hold back the same at this juncture. They will be spelled out while discussing the validity of the Notification dated 21-4-2004 as the subject-matter thereof is same. Here, we are concerned with the powers of DGFT to issue such a public notice. 89. In order to answer this question, we have to first determine as to whether this Public Notice dated 28-1-2004 is only an amendment to Handbook of Procedures or it tinkers with the EXIM Policy. To answer this question, we may first go into the scheme of the Act. For this purpose, Section 5 as well as Section 6 of the Act are to be taken note of in the first instance and read as under: “5. Foreign Trade Policy.—The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the Foreign Trade Policy and may also, in like manner, amend that Policy: - 38 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Provided that the Central Government may direct that, in respect of the Special Economic Zones, the Foreign Trade Policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette. 6. Appointment of Director General and his functions.— (1) The Central Government may appoint any person to be the Director General of Foreign Trade for the purposes of this Act. (2) The Director General shall advise the Central Government in the formulation of the Foreign Trade Policy and shall be responsible for carrying out that Policy. (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under Sections 3, 5, 15, 16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order.” 90. From the aforesaid, it is clear that Section 5 provides that the Central Government may, from time to time, formulate and announce, the EXIM Policy. This has to be done by issuing/announcing this Policy by way of notification in the Official Gazette. The Central Government also has the power to amend the Policy so announced by adopting the same procedure i.e. by issuing notification in the Official Gazette. It is not in dispute that the EXIM Policy in question was issued by notification in exercise of powers conferred under Section 5 of the Act. This Policy, thus, is infested with statutory flavour. 91. For the purpose of carrying out the objectives of the Act which includes implementation of the Policy, the Central Government is authorised to appoint DGFT as per Section 6 of the Act. The main functions of DGFT are advising the Central Government in formulation of the Policy and he is also responsible for carrying out the said Policy. Sub- section (3) of Section 6 provides that the Central Government may delegate its power exercisable under the - 39 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Act. However, powers under Sections 3, 5, 15, 16 and 19 are specifically excluded which means these powers cannot be delegated. Thus, power to announce the Policy and to amend the same remains with the Central Government. Likewise, power to make rules under Section 19 which vests with the Central Government, cannot be delegated. 92. Keeping in mind the aforesaid legal position, we reproduce certain portion of the EXIM Policy announced vide Notification No. 1 dated 31-3-2003 which have bearing on the issue at hand. These are: Para 1.1 of the Export and Import Policy provided that: In exercise of the powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (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 1-4-2002 and shall remain in force up to 31-3-2007 and will be coterminus 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.” Para 1.2 of the said Policy provides that: 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.” Para 2.4 of the Import and Export Policy dealing with the procedure provides that: - 40 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 “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).” 93. It is explained by the learned counsel for the Union of India that a notification issued under Section 5 of the Act or any change brought about by DGFT in exercise of the powers under Para 2.4 of the Import and Export Policy in the Handbook Procedure, by way of a public notice the same are gazetted and notified in the Gazette of India. It is also pointed out that the notification/public notices issued relating to non-statutory rules, regulations, order and resolutions issued by the Ministries of Government of India (other than the Defence Ministry), and by the Supreme Court of India are published under Part 1 Section 1 of the Gazette of India. On the other hand, notifications issued by the Ministries of Government of India (other than the Defence Ministry) are published under Part II Section 3(ii) of the Gazette of India. On that basis, justification is sought to be given that Notification No. 28/(RE-2003)/2002-2007 dated 28-1-2004, Notification No. 38/(RE-2003)/2002-2007 dated 21- 4-2004 were published in the Gazette of India under Part II, Section 3 sub-section (ii), while Public Notice No. 40 dated 28-1-2004 was published in the Gazette of India under Part I Section 1 of the Gazette of India and as such, as both the notifications as well as the public notices are officially gazetted in the Gazette of India. Thus, there is no distinction between the two as the same carry the same impact and effect. 94. From the aforesaid explanation, we take it that the Public Notice dated 28-1-2004 was published in the Gazette - 41 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 of India in accordance with the requirement of law. The question, however, is as to whether by this public notice, DGFT was only carrying out the EXIM Policy or this public notice amounted to change in the said EXIM Policy. It is crystal clear that the public notice alters the provisions of the EXIM Policy. It would, therefore, amount to amending the EXIM Policy, whether clarificatory or otherwise. There may be a valid justification and rational for exclusion of four items contained therein, as pleaded by the Union. However, it had to be done in accordance with law. When DGFT had no power in this behalf, he could not have excluded such items from the purview of the EXIM Policy by means of public notice. The power of DGFT is only to be exercised for procedural purposes and both the High Courts have rightly remarked that Para 3.2.6 inserted by the public notice goes beyond the procedural conditions. 95. In fact, the Government itself realized the same, namely, the DGFT had no such power, it is for this reason that what was sought to be achieved by the said Public Notice, was formalized by the Central Government by issuing Notifications dated April 21 and 23, 2004 in exercise of powers conferred on the Central Government by Section 5 of the Act and the same four items were excluded. 96. Therefore, we hold that public notice dated January 28, 2004 issued by DGFT, so far it excludes the aforesaid four items, is ultra vires. 14. The aforesaid judgment of the Apex Court has been followed by the Delhi High Court in M.D. Overseas’s case supra. 15. Insofar as the judgment of the Apex Court in AGRICAS LLP’s case supra relied upon by the respondents is concerned, a perusal of para-15 of the said judgment will indicate that the same were issued by the Central Government and that the DGFT had performed only the ministerial act of publication and that the decision to amend - 42 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 and issue the Notification was that of the Central Government. The said judgment is inapplicable to the facts of the instant case, since, as stated supra, the power to amend the FTP is vested solely and exclusively with the Central Government in terms of Para 1.02 of the FTP. In this context, as is clear from the Public Notice dated 14.06.2022 containing the impugned ‘condition x’, the said Public Notice is traceable to Para 1.03 and Para 2.04 of the FTP and not to Para 1.02 of the FTP. To put it differently, amendment to the FTP can be done only by the Central Government under Para 1.02 of the FTP, whereas amendment to the procedure can be done by the DGFT under Para 1.03 and Para 2.04 of the FTP. 16. Under these circumstances, in the light of the undisputed fact that the Public Notice dated 14.06.2022 containing the impugned ‘condition x’ has been issued by the DGFT by tracing his powers to Para 1.03 and Para 2.04 and not to Para 1.02, it is clear that the said Public Notice has been issued only by the DGFT alone and not by the Central Government and consequently, in the facts of the present case, the said judgment has no application and cannot be relied upon by the respondents. 17. Insofar as the judgment of the Kerala High Court in Mustafa Traders case (supra) is concerned, apart from the fact that the facts obtaining in the said case were entirely different; no ratio has been laid down by the Division Bench and the matter has been remitted back to the learned Single - 43 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Judge and as such, the said judgment is not applicable to the facts of the instant case. 18. Insofar as the judgment of the Apex Court in Chowgule & Company’s case (supra) is concerned, no ratio, much less any finding with regard to the power of the DGFT to amend the FTP or the issue in relation to Para 1.02, 1.03 and 2.04 of the FTP was returned or laid down by the Apex Court and consequently, mere reference to the DGFT in the said judgment cannot be made the basis to come to the conclusion that the DGFT has power and jurisdiction to amend the FTP as contended by the respondents. 19. Insofar as the other judgments of the High Courts of Gujarath, Madras and Andhra Pradesh relied upon by the respondents are concerned, apart from the fact that the facts obtaining in the said cases were different; Notifications were issued by the Central Government and not by the DGFT as is evident in the instant case and consequently, even these judgments are inapplicable to the case on hand. 20. In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned ‘condition x’ mentioned in Para 2 of the Public Notice at Annexure-J dated 14.06.2022 and the consequential Condition No.3 in the Condition sheet of the TRQ dated 05.07.2022 vide Annexure-M issued / allotted to the petitioner deserve to be quashed and necessary directions are to be issued to the respondents to refund the excess duty paid by the petitioner back to him, in addition to returning the Bank Guarantee - 44 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 dated 05.08.2022 furnished by the petitioner pursuant to the orders of this Court.” (vi) The impugned Circular (8/2018) is contrary to the statutory provisions of Foreign Exchange Management Act, 1999 also as an attempt is made to introduce new method of issuance of certificate of receipt of foreign exchange, which is impermissible and also contrary to the provisions of FEMA and regulations made there under. (vii) The impugned policy circulars namely No.06/2018 dated 22.05.2018 and No.08/2018 dated 21.06.2018 are arbitrary and unreasonable being violative of Article 14, as the circulars seeks to differentiate service providers as actual service providers and aggregators, which is not envisaged in the FTP in the light of the principles laid down by the Apex Court in the case of Shayara Bano Vs Union of India - (2017) 9 SCC 1 (Paras 87, 95, 100 and 101) and Deputy Commissioner of Income Tax Vs Pepsi Foods Ltd. - (2021) 433 ITR 295 (SC) (Paras 14 & 22). (viii) The Circulars cannot restrict the scope of statutory provision/notification by reading into them a condition which is not provided for by the specific language of the statute. Restricting the scope of the SEIS benefit through circulars is colorable excise of - 45 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 power, which is ultra vires the FTP as held in the following judgments: (a) CCE Vs. Ratan Melting & Wires Industries, (2008) (231) E.L.T 22 SC; (b) Alstom India Ltd. Vs. Union of India, 2014 (301) E.L.T. 446 (Guj); (c) Atlantic Shipping Pvt. Ltd. Vs. Union of India and others, 2021-TIOL-582-MUM-Cus; (d) Ericson India Global Services Pvt. Ltd. Vs. Union of India and others 2021-TIOL-998-HC-DEL-CUS. (ix) By the impugned circulars, actions and show cause notices, DGFT and DRI-Customs seek to proceed against the petitioners which is illegal and impermissible in law, since Policy circulars are prospective in nature, cannot be applied to the transactions already concluded as held by the Apex Court in the case of Suchitra Components Ltd. v. Commissioner of Central Excise, Guntur - 2007 (208) E.L.T. 321 (S.C.). (x) The DGFT has not cancelled the scrips and hence, the same are valid; in this context, it is significant to note that the proper officer empowered as per the FTDR Act read with the HBOP for FTP 2015-20 is an officer of DGFT. Therefore, the letter by DRI-Customs dated 15.01.2021 directing DGFT to withhold grant of duty credit scrips pertaining to 2017-18, on the basis of - 46 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 which the scrips have not been granted to the petitioners is against due process established under the Act and is without authority of law. As per Para 3.01(h), the DGFT is empowered to grant the benefits of SEIS as per the scheme after due scrutiny of the documents. With respect to the application for duty credit scrips pertaining to the period prior to 2017-18, there has been no review or orders passed by the DGFT holding that the petitioners are ineligible for SEIS. Section 9 of FTDR Act, empowers DGFT to issue, suspend or cancel the license or scrips after following the procedure as set out therein. Till cancellation of the scrips issued by DGFT, the said scrips would be valid as held by the Madras High Court in the case of Jindal Drugs Pvt Ltd Vs. Union of India and others - 2022 fields (379) ELT 59(Mad). (xi) As held by the Bombay High Court in Atlantic Shipping’s case supra, the petitioners are the actual service providers and merely because the petitioners get the services undertaken by engaging other service providers, they cannot be termed as aggregators to deny the benefits. (xii) The DRI-Customs do not have jurisdiction to demand duty / value of scrips till such scrips are cancelled by the issuing authority i.e., DGFT as held in the following judgments: - 47 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 (a) Titan Medical Systems Pvt. Ltd. Vs. Controller of Customs, 2003 (151) E.L.T. 254 (S.C.)[Para 13]; (b) (b) Commissioner of Customs, Bangalore vs Aditya Birla Nuvo Ltd. 2021 (378) E.L.T. 42 (Kar.)[Para 9]; (c) Jeena & Company Vs. Union of India, (2024) 15 Cental 55(Mad) (xiii) As also rightly contended by the learned Senior counsel for the petitioners, it is seen that the said SEIS scrips which have been issued by the DGFT have not been cancelled and are still in force and consequently, the impugned show cause notices are also illegal and deserve to be quashed. In this regard, it would be necessary to extract Section 28AAA of the Customs Act, 1962, which reads as under: Section 28AAA - Recovery of duties in certain cases. (1) Where an instrument issued to a person has been obtained by him by means of— (a) collusion; or (b) wilful mis-statement; or (c) suppression of facts, for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), 25a [or any other law, or any scheme of the Central Government, for the time being in force, by such person] or his agent or employee and such instrument is - 48 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 utilised under the provisions of this Act or the rules 25b [or regulations] made or notifications issued thereunder, by a person other than the person to whom the instrument was issued, the duty relatable to such utilisation of instrument shall be deemed never to have been exempted or debited and such duty shall be recovered from the person to whom the said instrument was issued: Provided that the action relating to recovery of duty under this section against the person to whom the instrument was issued shall be without prejudice to an action against the importer under section 28. Explanation 1.— For the purposes of this sub- section, \"instrument\" means any scrip or authorisation or licence or certificate or such other document, by whatever name called, issued under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), 25c [or duty credit issued under section 51B, with respect to] a reward or incentive scheme or duty exemption scheme or duty remission scheme or such other scheme bestowing financial or fiscal benefits, which may be utilised under the provisions of this Act or the rules made or notifications issued thereunder. Explanation 2.—The provisions of this sub-section shall apply to any utilisation of instrument so obtained by the person referred to in this sub-section on or after the date on which the Finance Bill, 2012 receives the assent of the President, whether or not such instrument is issued to him prior to the date of the assent. (2) Where the duty becomes recoverable in accordance with the provisions of sub-section (1), the person - 49 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 from whom such duty is to be recovered, shall, in addition to such duty, be liable to pay interest at the rate fixed by the Central Government under section 28AA and the amount of such interest shall be calculated for the period beginning from the date of utilisation of the instrument till the date of recovery of such duty. (3) For the purposes of recovery under sub-section (2), the proper officer shall serve notice on the person to whom the instrument was issued requiring him to show cause, within a period of thirty days from the date of receipt of the notice, as to why the amount specified in the notice (excluding the interest) should not be recovered from him, and after giving that person an opportunity of being heard, and after considering the representation, if any, made by such person, determine the amount of duty or interest or both to be recovered from such person, not being in excess of the amount specified in the notice, and pass order to recover the amount of duty or interest or both and the person to whom the instrument was issued shall repay the amount so specified in the notice within a period of thirty days from the date of receipt of the said order, along with the interest due on such amount, whether or not the amount of interest is specified separately. (4) Where an order determining the duty has been passed under section 28, no order to recover that duty shall be passed under this section. (5) Where the person referred to in sub-section (3) fails to repay the amount within the period of thirty days specified therein, it shall be recovered in the manner laid down in sub-section (1) of section 142.] - 50 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 (ix) Under identical circumstances, in the case of Jeena & Co., vs. Union of India & others - (2024) 15 Centax 55, the Madras High Court quashed the show cause notices by holding as under: “17. In the instant case on hand, the principle laid down in Titan Medical Systems (P) Ltd v. Collector of Customs, New Delhi would only be applicable. It is an undisputed fact that Director General of Foreign Trade [DGFT] has issued the license under section 9 of Foreign Trade Development and Regulation Act, 1992 [FTDR Act] and thereby issued SEIS Scrips [Service Exports from India Scheme]. Though DGFT has issued show cause notices on various dates viz., 1st SCN on 21-10-2020, 2nd SCN and 3rd SCN on 3-2-2021 and an order dated 23-10-2020 came to be passed by DGFT placing the petitioner under the Denied Entities List, the same were withdrawn in entirety by virtue of letter dated 20-9-2021. It is also undisputed that till date, DGFT has not initiated any steps to cancel the license issued by them and hence, this Court is of the considered view that the show cause notice dated 24th November 2020 issued by the second Respondent is without any jurisdiction. Unless otherwise the DGFT initiates any proceedings to cancel the license, the customs authorities cannot assume any jurisdiction to issue notice under section 28 AAA of the Customs Act, 1962 assuming the jurisdiction of the DGFT.” (x) The aforesaid position is reinforced by the Circular issued by CBEC in No.334/1/2012 dated 01.06.2012, which clearly states as under: - 51 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 II.2 Recovery of duty in case of instrument issued under Foreign Trade (Development and Regulation) Act : Section 28AAA has been inserted in the Customs Act through Section 122 of the Finance Act, 2012 to provide for recovery of duties from the person to whom an instrument such as credit duty scrips was issued where such instrument was obtained be means of collusion or willful misstatement or suppression of facts. Since the provision now has the force of law, action for recovery of duty can be initiated under the said provision. Field formations are advised to issue demands as soon as DGFT/concerned regional Authority initiates action for cancellation of an instrument but the matter may be decided only after the instrument has been cancelled by DGFT. 21. In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned Policy Circulars and impugned show cause notices deserve to be quashed and necessary directions be issued to the respondents. 22. In the result, I pass the following:- ORDER (i) Both W.P.No.12044/2021 and W.P.No.12068/2021 are hereby allowed; (ii) The impugned Policy Circular No.06/2018 dated 22.05.2018 and impugned Policy Circular No.08/2018 dated 21.06.2018 issued by the DGFT are hereby declared ultra vires the - 52 - NC: 2024:KHC:17134 WP No. 12068 of 2021 C/W WP No. 12044 of 2021 Foreign Trade Policy, 2015-2020 and the same are accordingly quashed; (iii) In W.P.No.12044/2021, the impugned show cause notice dated 23.02.2021 issued by the DRI-Customs, is hereby quashed; consequently, the concerned respondents are directed to process and issue SEIS Scrips for the year 2017-18 in favour of the petitioners within a period of four weeks from the date of receipt of a copy of this order. (iv) In W.P.No.12068/2021, the impugned show cause notice dated 28.01.2021 issued by the DRI-Customs, is hereby quashed; consequently, the concerned respondents are directed to grant duty credit scrips in a sum of Rs.68,21,306/- in favour of the petitioners for the period 2017-18 as well as grant refund of Rs.74,05,477/- paid under protest together with applicable interest in favour of the petitioners within a period of four weeks from the date of receipt of a copy of this order. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl. "