The exclusion of 'Service Providers in Telecom Sector' from the benefit of SEIS is of a service provider providing telecom services. The Impugned Instructions dated 22.05.2019 sought to impose fresh restrictions on the eligibility of the service providers entitled to the benefit under SEIS, which amounted to amendment in the policy, and is therefore, ultra vires the Foreign Trade Policy.

JUDGMENT

Navin Chawla, J. - All the above three petitions raise similar grievances and are therefore, adjudicated by way of a common judgment. For sake of convenience, the facts have been taken from WP (C) 13249 of 2019.

2. The said petition has been filed by the petitioner challenging the instructions dated 22.05.2019, addressed by the respondent no. 4 to the respondent no. 3, advising that all services, whether Engineering Services (Network Engineering Services, Management and Operation of Network Services (Managed Services) in Telecom Sector or Management Consulting Services) in Telecom Sector, are ineligible for the benefit under the Service Exports from India Scheme (hereinafter referred to as 'SEIS') announced by the Foreign Trade Policy 2015-20. The petition further impugns the order(s) dated 11.06.2019 and 03.06.2019, whereby the respondent no. 3 has rejected the claim of the petitioner(s) for benefit under the SEIS for the financial years 2015-16, 2016-17 and 2017-18, respectively.

3. To appreciate the dispute between the parties, few facts need to be highlighted.

3.1 The respondent no. 1, in exercise of its powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the 'Act'), notified the Foreign Trade Policy, 2015-20 (hereinafter referred to as the 'FTP').

3.2 Chapter 3 of the FTP details the "Exports from India Schemes".

3.3 Paragraph 3.01 of the FTP states that there shall be following two schemes for exports of Merchandise and Services respectively:

(a) Merchandise Exports from India Scheme (MEIS);

(b) Service Exports from India Scheme (SEIS)

3.4 The present set of petitions relate to claim of the petitioners under SEIS.

3.5 The petitioner raised the claim for issuance of Duty Credit Scrips under SEIS claiming that it is providing Engineering Services under Central Product Classification (CPC) Code 8672 and Management Consulting Services under CPC Code 865, as mentioned in Appendix-3D of the FTP.

3.6 By way of the impugned instructions dated 22.05.2019, addressed by the respondent no. 4 to the respondent no. 3, respondent no. 4 opined/instructed that all services, whether Engineering Services (Network Engineering Services, Management and Operation of Network Services (Managed Services) in Telecom Sector or Management Consulting Services) in Telecom Sector, are ineligible for SEIS.

3.7 Following the above instructions, the claims of the petitioner for benefit of SEIS were rejected by the impugned Orders dated 03.06.2019 and 11.06.2019.

4. The learned senior counsel for the petitioner(s) submits that the Impugned Instructions dated 22.05.2019 are contrary to the FTP inasmuch as they seek to create an additional category of ineligible services for availing the benefit of SEIS. He submits that the phrase "Service Providers in Telecom Sector" relates to the service providers who are in the telecom sector and not those who provide services to the telecom sector. In this regard, he has drawn the attention of this Court to the Handbook of Procedures (Volume I) for the period 27.08.2009 to 31.03.2014, which, in paragraph 3.6.1, had declared the service providers in telecom sector mentioned at S.No.2(C) of Appendix-10 thereto as ineligible for availing benefit under the "Served From India Scheme" (SFIS), which was the then prevailing scheme equivalent to present SEIS. He submits that S.No.2(C) of the Appendix-10 lists out the services in the telecom sector such as, voice telephone services, packet-switched data transmission services, telex services, etc. He submits that these are telecom services by themselves and therefore, it is only these telecom services that would be excluded and become ineligible from availing the benefit under the then SFIS and now the SEIS Scheme. He submits that there is no reason for interpreting the exclusion in the FTP 2015-20 in any other manner as, if that were the intention, the respondent no. 1 would have clearly spelt out the same in the FTP.

5. The