DGFT's interpretation of policy is final and binding, and absence of misrepresentation in actions can impact the entitlement to benefits.

JUDGMENT

Manmohan, J. (Oral)

1. Present writ petition has been filed with the following prayers:

a. Issue a writ of certiorari or any other appropriate writ, order or direction in the nature thereof, quashing the impugned Para C of Public Notice 30/2015-2020 dated 8.09.2016 issued by Respondent No. 2 as illegal and violative of Foreign Trade (Development & Regulation) Act;

b. Issue a writ of certiorari or any other appropriate writ, order or direction in the nature thereof, quashing the impugned Order NO. 09/(10)ADG (Adj)/DRI/N. Delhi/2020-21 dated 31.08.2020 passed by the Respondent No. 4;

2. Learned senior counsel for the petitioner primarily contends that in the present case, there is no question of simultaneous availment of Status Holder Incentive Scheme (SHIS) and 0% Export Promotion Capital Goods (EPCG) Scheme as the petitioner had already surrendered EPCG Scheme in terms of para 5.14 of Hand Book of Procedure (HBP) prior to the issuance of SHIS Scrips. He points out that the Union of India as well as DGFT have in their counter affidavits supported the petitioner's stand. The relevant portion of the common counter-affidavit filed by the Union of India and DGFT is reproduced herein below:

"3. That in response to the notice issued by this Hon'ble Court, I state that the Petitioner had obtained 25 zero duty EPCG authorizations, 9 in FY 2012-13 and 16 in FY 2013-14 respectively. The Petitioner thereafter decided to avail SHIS benefit for the exports made during the FY 2011-2012 and FY 2012-2013 and in view of the bar under the FTP in simultaneously availing SHIS and zero duty EPCG benefit in the same year, it surrendered the EPCG benefit received under zero duty EPCG authorization by voluntarily exiting. Consequently, the Petitioner became liable to pay customs duty (saved amount i.e. exemption availed under Notification No.102/09-Cus dated 1l.9.2009) along with interest of 15%. Accordingly, the Petitioner vide its request of demand letters dated 16.2.2015 and 18.2.2015 applied to the Regional Licensing Authority of Respondent No.2 at Cuttack and Panipat for the issuance of demand notices in order to pay the customs duty along with an interest of 15% ad valorem as regards the capital goods imported under the EPCG scheme in terms of 5.14 of the HBP. In pursuance to the demand notice issued by Regional Licensing Authorities of Panipat and Cuttack, the Petitioner paid the custom duty by utilizing the SHIS scrips purchased from the open market as stipulated under 5.14 of the HBP while the interest was paid in cash in accordance with para 3.17.11 of the FTP. Accordingly, the Regional Licensing Authorities of Panipat and Cuttack accepted the payment and issued exit letter(s) dated 30.4.2015, 1.5.2015 and 25.6.2015 for the FY 2012-13, FY 2013-14 to the Petitioner.

4. That I state that after regularizing/exiting from the obligations under EPCG authorizations, the Petitioner applied for scrips under SHIS and accordingly, the Regional Licensing Authority issued SHIS scrips vide letter dated 6.5.2016 and 25.5.2016 for the exports made during FY 2011-12 and FY 2012-13 respectively i.e. 11 scrips for exports in FY 2012-13 and 28 scrips for exports in FY 2013-14. Prior to the issuance of SHIS scrips, the Petitioner vide its letter dated 11.3.2016, informed Respondent No.2 about the payment with interest for FY 2012-2013 and 2013-2014 towards the voluntary exit from the EPCG scheme.

5. That I state that the above action of the Petitioner with respect to exit from EPCG authorizations after its regularization by paying relevant duty with interest and later availing SHIS for the exports made during FY 2011-12 and FY 2012-13 was not a violation of the extant policy and Respondent No.2 has already clarified this position in the case of another exporter. Such clarifications are issued by Respondent No.2 under powers vested under para 2.57(a) of the FTP 2015-20. A copy of Clarification dated 20.2.2017 issued by Respondent No.2 is annexed hereto and m