Page 148 - ELT_1st September 2020_Vol 373_Part 5

586 EXCISE LAW TIMES [ Vol. 373

(2) Gold, silver in any form including plain jewellery thereof, insofar as
the import of capital goods and office equipment for the factory of
the associate/supporting manufacturer/job worker shall be work-
ing.
16. The petitioner herein also filed a writ petition before the High Court
of Judicature at Bombay, being Writ Petition No. 2397/2004, challenging the No-
tifications dated 28-1-2004 and 21-4-2004 as amended by the Notification dated
23-4-2004 as also the Public Notice dated 28-1-2004.
17. The Bombay High Court by its judgment dated 4-7-2005 partly al-
lowed this writ petition. It upheld the validity of the Notification dated 28-1-2004
holding it to be clarificatory in nature, and set aside the Public Notice dated 28-1-
2004 as being ultra vires. It further held that the Notifications dated 21-4-2004 and
23-4-2004 can have only prospective operation, which means that exports made
by the exporters prior to April 21, 2004 in respect of the classes of goods covered
by Notification dated 21-4-2004 were entitled to be taken into consideration for
the purposes of determining the entitlement of duty free imports. The relief
granted by the High Court in favour of the petitioner is reproduced
hereinbelow :
“36. In the result the petition is partly allowed. Public Notice dated 28th
January 2004 is quashed and set aside. As far as Notifications dated 21st
and 23rd April, 2004 are concerned, it is declared that the said notifications
will have only prospective operation and the exports made by the petition-
ers prior to the said notifications in respect of the classes of goods covered
by the said notifications shall be liable to be computed for the purpose of
determining the entitlement of the petitioners. No order as to costs.”
18. The judgment passed by the Gujarat High Court as also the Bombay
High Court were challenged by the parties by way of Special Leave Petitions
before the Supreme Court. The Supreme Court vide common judgment dated
27-10-2015 [2015 (326) E.L.T. 26 (S.C.)] was pleased to dispose of these appeals
inter alia holding as under :
(A) The Notification No. 28(RE 2003)/2002-2007, dated 28-1-2004 was
clarificatory in nature and was therefore, valid;
(B) Public Notice No. 40, dated 28-1-2004 issued by the DGFT, so far as
it excluded certain items from being taken into account for computation
of incremental exports under DFCE, is ultra vires;
(C) Notification No. 38 and 40(RE 2003)/2002-2007, dated 21-4-2004
and 23-4-2004 respectively are not clarificatory in nature and have only
prospective effect.
19. The Supreme Court while answering whether the Notifications dat-
ed 21-4-2004 and 23-4-2004 had taken away any vested right of the petitioner
herein and therefore was retrospective in nature, held as under :
“(109) So far so good. The effect of the aforesaid discussion would be that
if the Status Holders had achieved 25% incremental growth in exports, they
acquired the right to receive the benefit under the Scheme, which could not
be taken away. The pertinent and crucial question is as to whether these
exporters/writ petitioners acquired any such right? Let us sharpen this
question before we answer the same by formulating it in the following
words :
EXCISE LAW TIMES  1st September 2020  148