The legal position established in 'Director General of Foreign Trade v. Kanak Exports, 2015 (326) ELT 26 (SC)' was cited to support the ruling that a subsequent notification could not be applied retrospectively.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The Petitioner - M/s Jindal Exports and Imports Private Limited has filed the present petition challenging the Directorate General of Foreign Trade's (`DGFT') stand of non-issuance of Advance Authorization for the import of Gold bars and export of manufactured Gold Jewellery and Gold Medallions by the Petitioner.

3. The Petitioner is a company engaged in manufacturing and export of gold jewellery, articles, medallions, bars, plates and rods and trading of gold, silver, platinum and palladium. It has been a recognized export house since 2017. The case of the Petitioner is that in terms of Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Respondent - DGFT is to issue Advance Authorizations for import of gold bars in order to enable manufacturing of gold jewelry and medallions. It is the case of the Petitioner that between 2015 to 2019, the Petitioner had been granted such authorizations regularly for importing gold bars and export of gold medallions.

4. On 26th June, 2019, the Petitioner applied for issuance of an Advance Authorization. However, the same was rejected. The Respondent issued Public Notice No.35/(2015-2020) dated 26th September 2019 to the effect that Advance Authorization would not be issued where the items for export were `Gold Medallions and Coins' or `Any other jewelry/articles manufactured by a fully mechanized process. `

5. Pursuant to the said public notice, a rejection letter dated 30th September, 2019 was issued which is set out below:

"REJECTION LETTER

To,

Jindal Exports & Imports Pvt. Ltd.

110, Babar Road, Opp Hotel Hilton

New Delhi-110001

Sub: Rejection Letter

Sir/Madam,

Your Application has been rejected due to following reasons:

1. The Advance Authorisation cannot be issued for the export item Gold Meddallions Purity 91.6% as per Public Notice no. 35/2015-2020 dt. 26.09.2019. Hence, your case has been rejected.

Your case stands closed

Your's faithfully,

(Ramesh Kumar Verma

Dy. Director General of Foreign Trade

Place: New Delhi

Date: 30.09.2019"

6. The case of the Petitioner is that another similarly placed export house, namely, M/s M.D. Overseas Limited had challenged an identical public notice which was issued by the Respondents. In this case as well, the public notice was considered by the ld. Division Bench in W.P.(C) 12197/2019 titled `M.D. Overseas Limited v. Union of India & Ors.'. The rejection was based on the same public notice no. 35/(2015-2020). It is the case of the Petitioner that the basis of the rejection being public notice no. 35/(2015-2020), was challenged before this Court in W.P.(C) 12197/2019 wherein the ld. Division Bench quashed the said public notice. The operative portion of the said judgement dated 11th February 2020 reads as under:

"30. In view of the aforesaid decision, categorisation or recategorization cannot be done by the policy circulars, such exercise has to be undertaken by specific amendment to the Foreign Trade Policy under Section 5 of the Act. Hence also, the public notice No.35/2015-2020 dated 26th September, 2019 (Annexure P-1) is beyond the power, jurisdiction and authority of DGFT.

31. In view of the aforesaid decision also, the power exercised by DGFT under paragraph 1.03 of the Foreign Trade Policy 2015-2020 is illegal and the same deserves to be quashed and set aside.

32. In view of the aforesaid facts, reasons and judicial pronouncements, we hereby quash and set aside the public notice dated 26th September 2019 issued by respondent No.1 and consequential letters dated 1st November, 2019 which are Annexure P-2 and Annexure P-3 respectively to the memo of writ petition are directed to be decided by respondent No.1 as early as possible and practicable.

33. In view of the aforesaid, the writ petition stands allowed and disposed of."

7. SLP No. 11088/2021 against the said judgment was dismissed on 27th August, 2021. When the Petitioner learnt of the judgmen