The requirement of an active Importer-exporter Code at the time of service export is inconsistent with the Foreign Trade Act, as benefits under the FTP are only needed when availing of rewards.

JUDGMENT

1. Since common questions of law are involved in the instant Writ Petitions, with the consent of the parties, the same are being disposed of by a Common Order. The facts of W.P.(C) 9084/2020 are being narrated for the sake of brevity, to understand the gamut of the questions that arise for consideration. However, before delving into the facts based on which the instant question of law has arisen, this Court would deem it fit to give an outline of the provisions of the relevant statute and policy made under it, the vires of which is under challenge.

2. The Foreign Trade (Development & Regulation) Act, 1992 ("FTDR Act")was enacted with the aim and objective of providing a framework for development and regulation of foreign trade by facilitating imports into, and augmenting exports from India. Section 3 of the FTDR Act gives power to the Central Government to make provisions by publication in the official gazette to implement the aforesaid objectives of the Act. Further, Section 5 of the FTDR Act empowers the Centre to formulate the export and import policy of the Country. Keeping the power envisaged under Section 5 of the FTDR Act, the Centre has launched policies concerning the import-export of the country from time to time.

3. Under Section 7 of the Act, it has been elucidated that-

"No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General."

4. On 19.08.2010, the Foreign Trade (Development and Regulation) Amendment Act, 2010 came into effect, thereby amending the aforesaid Section 7 of the Act and inserting a proviso to it which reads as under-

"Provided that in case of export or import of services or technology, the Importer-exporter Code Number shall be necessary only when the service or technology provider is availing benefit under the foreign trade policy or is dealing with specified services or specified technology"

5. On 31.03.2015, the Respondent No. 1 in exercise of powers conferred under Section 5 of the FTDR Act, announced the Foreign Trade Policy for the year 2015-2020 ("FTP 2015-20"). This replaced the earlier `Serve from India Scheme' under the prior Foreign Trade Policy with a `Service Exports from India Scheme' ("SEIS") policy under the FTP 2015-20.

6. In the SEIS, under the FTP 2015-20, service providers of notified services are incentivized in the form of Duty Credit Scrips at a certain percentage of their Net Foreign Exchange ("NFE") earnings. A service provider of such notified services located in India shall be eligible to avail the benefit of these Scrips if it garners a minimum NFE of USD 15000 $ in a particular financial year while rendering services.

7. Under paragraph 3.08 which gives the specifications for eligibility of aforestated benefits, clause (f) states that in order for one to claim reward under the scheme, the service provider shall have to have an active IEC at the time of rendering such services, for which rewards are claimed. The same is reproduced as under-

"(f) In order to claim reward under the scheme, Service provider shall have to have an active IEC at the time of rendering such services for which rewards are claimed."

8. It is the aforestated provisions of Clause 3.08 (f) of the FTP 2015-20, the vires of which in relation to the Parent Act, i.e., the FTDR Act, is under challenge on the ground that it is repugnant