Page 173 - ELT_15th July 2020_Vol 373_Part 2

2020 ] M.D. OVERSEAS LIMITED v. UNION OF INDIA 155

Para 4.33 wherein under sub-para (iv), the Central Government has provided for
Advance Authorization for Precious Metals, for which the detailed scheme is
provided under Para 4.37 which reads as under :-
“4.37 Advance Authorisation for Precious Metals :
(a) Advance Authorisation shall be granted on pre-import basis
with ‘Actual User’ condition for duty free [excluding Integrat-
ed Tax and Compensation cess leviable under Section 3(7) and
3(9) of Customs Tariff Act] import of :
(i) Gold of fineness not less than 0.995 and mountings, sock-
ets, frames and findings of 8 carats and above;
(ii) Silver of fineness not less than 0.995 and mountings,
sockets, frames and findings containing more than 50%
silver by weight;
(iii) Platinum of fineness not less than 0.900 and mountings,
sockets, frames and findings containing more than 50%
platinum by weight.
(b) Advance Authorisation shall carry an export obligation which
shall be fulfilled as per procedure indicated in Chapter 4 of
Handbook of Procedures.
(c) Value Addition shall be as per paragraph 4.38 of FTP and 4.61
of Handbook of Procedures.”
24. Moreover, the Foreign Trade Policy (2015-2020), under Para 1.03
empowers the DGFT to notify Handbook of Procedures for the purposes of lay-
ing down the procedures to be followed by exporter or the importer and the
same reads as under :-
“1.03 Handbook of Procedures (HBP) and Appendices & Aayat Niryat
Forms (AANF)
Director General of Foreign Trade (DGFT) may, by means of a Public No-
tice, notify Handbook of Procedures, including Appendices and Aayat Ni-
ryat Forms or amendment thereto, if any, laying down the procedure to be
followed by an exporter or importer or by any Licensing/Regional Authori-
ty or by any other authority for purposes of implementing provisions of FT
(D&R) Act, the Rules and the Orders made thereunder and provisions of
FTP.”
25. Having heard the Learned Counsel for the parties and looking to
the facts and circumstances of the case, it appears that by impugned Public No-
tice No. 35/2015-2020, dated 26th September, 2019 (Annexure P-1 to the memo of
writ petition) issued by respondent No. 1 whereby the Director General of For-
eign Trade (‘DGFT’), in exercise of the powers under paragraph 1.03 of the For-
eign Trade Policy 2015-2020, disallowed issuance of Advance Authorisations
where item of export is “Gold Medallions and Coins” or any jewellery/articles
manufactured by fully mechanized process, has in effect amended the Foreign
Trade Policy, in excess of power and jurisdiction of the DGFT.
26. In Director General of Foreign Trade v. Kanak Exports [2015 (326) E.L.T.
26 (S.C.)], the Supreme Court in paragraphs 97, 98 and 100 held as under :-
“97. 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

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