Page 153 - ELT_1st September 2020_Vol 373_Part 5

2020 ] KANAK EXPORTS v. UNION OF INDIA 591

supported by any evidence adduced by the UOI/DGFT in Kanak’s case.
There is no document placed on affidavit showing that a single export ef-
fected by Kanak was not genuine. In so far as Kanak is concerned, this, is a
case of :
• No pleading
• No evidence
in relation to genuineness of exports, but nevertheless denial of relief grant-
ed by the Bombay High Court.
xxxxxx
H. The statutory scheme provides a comprehensive machinery for sepa-
rating genuine cases for receiving duty free entitlement certificates from
cases that are not genuine. An evaluation of every application seeking
DFEC is required to be processed by the DGFT. This is the stage at which
non-genuine applications may be weeded out and the applicant denied the
benefit. The issue before this Hon’ble Court was with respect to the validity
of the circulars and notifications and their retrospective effect. Having laid
down the law, it is an error apparent on the face of the record for this Court
to have made a determination on factual aspects without there being any
pleading or evidence.”
22. The Supreme Court, however, by its order dated 9-3-2016 was
pleased to dismiss the Review Petition filed by the petitioner.
23. The petitioner, thereafter filed a revised application dated 21-11-
2016 before the respondent, contending therein that out of the total exports of
Rs. 1070.35 crores made by the petitioner between 1-4-2003 to 31-3-2004, exports
of Rs. 355.69 crores had become ineligible in view of the exclusion set out in Noti-
fication dated 28-1-2004, leaving the eligible exports at Rs. 714.66 crores entitled
for the benefit of the DFCE Scheme. In paragraph 3 of the said application, the
petitioner summarized, what according to it was the effect of the judgment dated
27-10-2015 of the Supreme Court, in the following words :
“3. Thereafter, the Supreme Court has decided the issue by judgment dat-
ed 27th October, 2015 inter alia holding that :
• Notification dated January 28, 2004 is clarificatory (para 85),
• Public Notice dated January 28, 2004 is ultra vires so far as it
excludes four items (para 96),
• Notifications dated April 21 & 23, 2004 are prospective (para
108),
• If status holder achieved 25% incremental growth in exports,
they acquired right to get benefit under scheme which cannot
be taken away (para 109),
• Vested rights do not accrue to those exporters whose exports
are not genuine but only on paper through fraudulent means
(para 111 r/w 114).
The reminder is given to implement the judgment of the Hon’ble Supreme
Court as after follow up, nothing has been done in respect of our pending
application.”
24. The respondent No. 3, however, by its Impugned Order/Letter dat-
ed 28-12-2017 has rejected the application of the petitioner relying upon the
EXCISE LAW TIMES  1st September 2020  153