Page 155 - ELT_1st September 2020_Vol 373_Part 5

2020 ] KANAK EXPORTS v. UNION OF INDIA 593

the Scheme to such exporter. He submits that in view of the Trade Notice dated
8-5-2017, the respondents were obligated to carry out such investigation to de-
termine the eligibility of the petitioner for the benefit under the Scheme.
29. The Learned Senior Counsel for the petitioner finally submits that
in reply to an application under the Right to Information Act, 2005, it was re-
vealed that in fact, such benefit of the Scheme has been given to M/s. Adani Ex-
ports Ltd. in spite of the observations made by the Supreme Court in the above
referred judgment and no recovery proceedings have been initiated against it. He
submits that this itself shows the understanding of the respondents of the Su-
preme Court judgment as not acting as a complete bar on the consideration of the
application of the petitioner or M/s. Adani Exports Ltd. for benefit under the
Scheme. He submits that to deny the petitioner of the benefit of the scheme
would therefore, be discriminatory.
30. The Learned Counsel for the respondents, on the other hand, sub-
mits that the petitioner is, in fact, seeking to reagitate the relief denied to it by the
Supreme Court. He submits that the petitioner cannot be allowed to seek the re-
lief which had been denied by the Supreme Court.
31. I have considered the submissions made by the Learned Senior
Counsels for the parties.
32. The Supreme Court in its judgment dated 27-10-2015 had inter alia
considered the letter dated 13-10-2003 addressed by the Joint Secretary, Govt. of
India, Central Board of Excise and Customs, addressed to the DGFT as also vari-
ous other contemporaneous letters/Circulars/Minutes of Meeting leading up to
the issuance of the Notifications dated 21-4-2004 and 23-4-2004. It also took note
of the counter affidavit filed by the Union of India, giving details of the modus
operandi used by the exporters in inflating their exports to claim benefit of the
DFCE Scheme.
33. In the counter affidavit, specific reference was made by the re-
spondents to the petitioner herein to contend that the petitioner has shown an
exponential growth in its exports of 3816% against the National Growth of Ex-
port of merely 18%.
34. I have already quoted in detail the findings of the Supreme Court,
which would clearly show that the Supreme Court was particularly considering
the case of M/s. Adani Exports as also the petitioner herein. For both these firms,
the Supreme Court found them to have resorted to blatant misuse of the provi-
sions of the Scheme and set aside the direction of the Bombay High Court grant-
ing relief to the petitioner under the said Scheme.
35. The petitioner in fact, filed a Review Petition seeking review of the
said judgment, which was also dismissed by the Supreme Court. In the Review
Petition, the petitioner had categorically contended that the finding of the Su-
preme Court that held the petitioner as having resorted to paper transactions
was not justified as the respondents had not placed any material on record
against the petitioner to prove the same. Relevant paragraphs of the Review Peti-
tion have been quoted hereinabove. The Review Petition was, however, dis-
missed by the Supreme Court.
36. The petitioner certainly could not have been allowed to re-agitate

EXCISE LAW TIMES  1st September 2020  155