Page 152 - ELT_1st September 2020_Vol 373_Part 5

590 EXCISE LAW TIMES [ Vol. 373

and periscopic viewing thereof establishes the same. Thus, the impugned
decision reflected in the notifications dated April 21 and 23, 2004, did not
take away any vested right of these exporters and amendments were neces-
sitated by overwhelming public interest/considerations to prevent the mis-
use of the Scheme.
Therefore, we are of the opinion that even when impugned Notification is-
sued under Section 5 could not be retrospective in nature, such retrospec-
tivity have not deprived the writ petitioners/exporters of their right inas-
much as no right had accrued in favour of such persons under the Scheme.
This Court, or for that matter the High Court in exercise of its writ jurisdic-
tion, cannot come to the aid of such petitioners/exporters who, without
making actual exports, play with the provisions of the Scheme and try to
take undue advantage thereof. To this extent, direction of the Bombay High
Court granting these exporters benefit of the Scheme for the past period is
set aside.”
20. The Supreme Court, thereafter, passed the following directions :
“(116) Thus, appeals and transfer cases stand disposed of in terms of
aforesaid answers provided by this Court to the various questions formu-
lated. To put it precisely, the effect of the aforesaid discussion would be to
uphold the decision of the Gujarat High Court, though on different ground,
thereby dismissing the appeals of the exporters against the said judgment
except to the extent indicated in para 114 above while the appeals of the
Government are allowed. Likewise, appeals of the Union of India against
the judgment of the Bombay High Court are allowed to the aforesaid extent
and the appeals of the exporters/writ petitioners are dismissed.”
21. Feeling aggrieved of the above judgment, the petitioner herein pre-
ferred an application seeking review of the same, being Review Petition (Civil)
No. 1593/2016. Some of the averments made in the Review Petition are relevant
to answer the contentions raised by the petitioner in the present petition and are
therefore, reproduced hereinunder :
“A. It is submitted that the Respondents did file pleadings in Kanak’s
Writ Petition before the Hon’ble Bombay High Court and in the Civil Ap-
peals before this Hon’ble Court. Before the Hon’ble Bombay High Court,
one Counter Affidavit/Reply in October 2004 was filed by the Union of In-
dia. No Counter Affidavit was filed in the Supreme Court on behalf of the
Respondents in Kanak’s Civil Appeal i.e. 658 of 2006. The only additional
pleading filed before this Hon’ble Court by the DGFT in Kanak’s case was
Special Leave Petition (converted into Civil Appeal No. 554/2006).
In not one of the pleadings filed by the respondents/DGFT is there a single
allegation specific to Kanak Exports that it had not in fact exported the sub-
ject goods or that the exports were “only on paper” or that the exports were
made by Kanak “through fraudulent means” or that Kanak had engaged in
“pernicious or blatant misuse of the provisions of the Scheme.”
Absent any pleading in Kanak’s Writ Petition or Civil Appeals, it was not
open for any Court much less this Hon’ble Court to record findings with re-
spect to Kanak Exports that the exports were “paper exports” or “fraudu-
lent”.
xxxxxx
B. It is submitted that the findings rendered with respect to paper exports
or exports by fraudulent means in so far as Kanak is concerned are not
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