Page 154 - ELT_1st September 2020_Vol 373_Part 5

592 EXCISE LAW TIMES [ Vol. 373

judgment of the Supreme Court and observing that in terms thereof, the petition-
er is not eligible to any benefit under DFCE Scheme as claimed.
25. The Learned Senior Counsel for the petitioner submits that the Im-
pugned Order is liable to be set aside inasmuch as the Supreme Court, in its
judgment dated 27-10-2015, was merely considering the validity of the Notifica-
tions dated 28-1-2004, 21-4-2004 and 23-4-2004. The Supreme Court was not
called upon to consider whether the petitioner is otherwise entitled to the benefit
under the DFCE Scheme. Findings of the Supreme Court were also confined only
to the determination of the validity of the above Notifications and the Public No-
tice and whether they could operate retrospectively with effect from 1-4-2003.
While the Notification dated 28-1-2004 was held to be clarificatory in nature and
therefore, applicable with retrospective effect, the Public Notice dated 28-1-2004
was held to be ultra vires and the Notifications dated 21-4-2004 and 23-4-2004
were held to be prospective in nature. The observations of the Supreme Court
that a vested right is not created in favour of the exporter who, without making
actual exports, plays with the provisions of the Scheme and tries to take undue
advantage thereof, were general in nature and not specific to the petitioner here-
in. For the respondents to apply the same observations to the petitioner, they
were to conduct an enquiry and only in case, after giving an opportunity of hear-
ing to the petitioner, they come to the conclusion that the exports carried out by
the petitioner were not eligible for the purpose of the Scheme, they could deny
the benefit of the Scheme to the petitioner. He submits that in the present case,
there is no such evidence of improper exports by the petitioner and in fact, the
respondents have not carried out any investigation into the same. He further
submits that the judgment of the Supreme Court cannot be interpreted like a
statute and has to be read and understood as per its plain meaning. He places
reliance on the judgments of the Supreme Court in Inderjeet Arya & Anr. -
MANU/DE/5778/2012; Bhavnagar University v. Palitana Sugar Mill (P) Ltd. -
(2003) 2 SCC 111; and UP Electricity Board v. Pooran Chandra Pandey - (2007) 11
SCC 92.
26. The Learned Senior Counsel for the petitioner further submits that
the allegations of fraud have to be specifically pleaded along with the supporting
material and cannot be based on mere presumptions and surmises. He places
reliance on the judgments in Bishnudeo Narain v. Seogeni Rai and Jagernath, AIR
1951 SC 280; Tukaram Dhondiba v. Andappa Genu Walekar, 2012 (3) Mh. LJ 150;
Sangramsinh Gaekwad v. Shantadevi Gaekwad, (2005) 11 SCC 314; Union of India v.
Chaturbhai M. Patel, (1976) 1 SCC 747; and Indian Bank v. Satyam Fibres, (1996) 5
SCC 550.
27. The Learned Senior Counsel for the petitioner submits that in the
present case, neither the Impugned Order nor the counter affidavit has made any
reference to any investigation that was carried out by the respondents or any ad-
verse material having been established against the petitioner.
28. The Learned Senior Counsel for the petitioner further submits that
the respondents, by issuing Trade Notice dated 8-5-2017, themselves have rightly
understood the effect of the judgment of the Supreme Court as requiring the re-
spondents to carry out a detailed investigation by the Zonal Committees into the
allegation of misuse of the Scheme and only where an exporter is found to have
misused the Scheme in the investigation of the Revenue Department, take pro-
ceedings for making recoveries, if any, from such exporters or deny the benefit of

EXCISE LAW TIMES  1st September 2020  154