Page 174 - ELT_15th July 2020_Vol 373_Part 2

156 EXCISE LAW TIMES [ Vol. 373

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, regula-
tions, order and resolutions issued by the Ministries of Government of In-
dia (other than the Defence Ministry), and by the Supreme Court of India
are published under Part I 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 Noti-
fication 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 ef-
fect.
xxx xxx xxx
98. From the aforesaid explanation, we take it that the Public Notice dated
28-1-2004 was published in the Gazette of India in accordance with the re-
quirement 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 pub-
lic 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 pro-
cedural purposes and both the High Courts have rightly remarked that Pa-
ra 3.2.6 inserted by the public notice goes beyond the procedural condi-
tions.
xxx xxx xxx
100. Therefore, we hold that the Public Notice dated 28-1-2004 issued by
DGFT, so far as it excludes the aforesaid four items, is ultra vires.”
27. In view of the aforesaid decision, the powers exercised by DGFT
while issuing the aforesaid public notice dated 26th September, 2019 which puts
restrictions upon issuance of the advance authorisation for the Gold Medallions
and Coins is beyond the power, jurisdiction and authority of DGFT.
28. It has been held by the Supreme Court in Atul Commodities Pvt. Ltd.
v. Commissioner of Customs, Cochin [2009 (235) E.L.T. 385 (S.C.)], in paragraphs 49
and 50 as under :-
“49. One more aspect needs to be mentioned. Para 2.33 expressly states
that import of old and used computers/second-hand computers are re-
stricted. Para 2.33 of the Handbook does not restrict photocopying ma-
chines. Import of photocopying machines is expressly restricted only by
Notification No. 31, dated 19-10-2005. This itself indicates that categorisa-
tion/recategorisation cannot be done by policy circulars. Such an exercise

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