Page 171 - ELT_15th July 2020_Vol 373_Part 2

2020 ] M.D. OVERSEAS LIMITED v. UNION OF INDIA 153

been processed within the time limits as provided for in the FTP. Furthermore, in
another letter issued on the same date, the Petitioner requested for issuance of
Advance Authorization on its earlier application dated 24th June, 2019, as well.
10. Yet another request was, thereafter, made by the Petitioner on
1st November, 2019, for issuance of the Advance Authorization for its Applica-
tion dated 24th June, 2019 as well as Application dated 18th September, 2019
wherein the Petitioner stated that it does not seek to press its application for re-
fund of application money.
11. DGFT issued the impugned Deficiency Letters both dated 1st No-
vember, 2019, which stated that the Advance Authorization as sought for by the
Petitioner, could not be granted in light of the Impugned Public Notice dated
26th September, 2019.
12. It has been contended by the Ld. Counsel for the Petitioner that the
DGFT vide its circular dated 26th September, 2019 by having excluded items of
“Gold Medallions and Coins” or “Any Jewellery manufactured by fully mecha-
nized process” has amended the provisions of the FTP which expressly provides
for the Advance Authorization in cases of these export items as per Para 4.32 of
the FTP.
13. It has been averred that, since, DGFT has no powers to amend the
FTP, in view of the specific exclusion of delegation of powers under Section 5 by
the Central Government to DGFT, in Section 6 of the the Foreign Trade (Devel-
opment & Regulation) Act, 1992, (hereinafter the “FTDR Act”), the circular is ul-
tra vires and is liable to be quashed accordingly.
14. The Petitioner has placed reliance on, Deepak Enterprises v. UOI
[2018 (360) E.L.T. 905 (Del.)] & DGFT v. Kanak Exports [2015 (326) E.L.T. 26 (S.C.)],
to argue that the exclusion of the items from the benefit of Advance Authoriza-
tion amounts to amendment of the FTP and thus, DGFT had no jurisdiction to
exclude the same behest a Public Notice.
15. The said exclusion, as per the Counsel of the Petitioner, could only
have been made through a Notification made by the Central Government in ex-
ercise of its powers under Section 5 of the FTDR Act. Furthermore, it has been
contended by relying on judgment in K.G. Denim Ltd. v. C.B.E. & C. [2018 (361)
E.L.T. 521 (Mad.)] that a benefit which has been extended vide a Statutory policy
cannot be taken away by a Policy Circular.
16. Without prejudice, the Ld. Counsel of the Petitioner has contended
that the Circular could not have been applied retrospectively. The Counsel relies
on the judgment of Malik Tanning Industries v. Union of India [2015 (320) E.L.T.
508 (Del.)] for the same. It is submitted that the according to the Para 9.10 of the
Handbook of Procedures (HBP) read with the Public Notice dated 8th June, 2015
which provides for preferential treatment for Status Holders, the application of
the Petitioner should have been processed within one day. However, as per the
Counsel for the Petitioner, there was an unjustified unreasonable delay in pro-
cessing of the Petitioner’s Application.
17. It has further, been so contended by the Petitioner that, since the de-
lay was not attributable to the Petitioner, placing reliance on the case Commis-
sioner v. M.P.V. and Engg. Industries [2003 (153) E.L.T. 485 (S.C.)], the grant of the
exemption should relate back to the date when the application was made. Since
the Petitioners application were filed before the Impugned Public Notice dated

EXCISE LAW TIMES  15th July 2020  171