JUDGMENT

(PER: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)

1. By this Special Civil Application, the writ-petitioner, which is a company incorporated under the Companies Act, 1956 and engaged in setting up power plants including project engineering, procurement, construction & commissioning for its customers, has prayed for the following reliefs:-

“[a] Be pleased to hold that Para 2.3 of the FTP is unconstitutional and ultra vires the FTDR Act or the FTP;

[b] Be pleased to declare and hold that Para 8.3.6 of the HOP is ultra vires the FTDR Act as well as FTP and declare it as null, void ab initio and non-est law.

[c] Be pleased to hold that Para 7 of the declaration attached with ANF-8 form read with the provisions of HOP does not grant power to the Respondent No.2 or its subordinates to re-verify or re-determine the duty drawback benefits once such benefits are approved to the claimant.

[d] Such further and other relief, order or direction which may be just, fit, proper and equitable in the facts and circumstances of the petition.”

2. The case made out by the petitioner may be summed up thus:-

2.1 The petitioner has been claiming “deemed export benefits” on various power projects and, therefore, has an interest in the legality and propriety of various powers exercised by the respondent no 2, the Director General of Foreign Trade [DGFT] and its subordinates in connection with the processing and grant of the deemed export benefit. The respondent no.1 is the Union of India, responsible for the formulation of the Foreign Trade Policy [FTP] under which the deemed export benefits are available to the petitioner.

2.2 Section-3 of the Foreign Trade (Development and Regulation) Act, 1992 (“FTDR Act”) empowers the Central Government to make provision for the development and regulation of foreign trade.

2.3 Section 5 of the FTDR Act empowers the Central Government to formulate and announce by way of notification in the Official Gazette, the export and import policy and it may also amend that policy from time to time. Pursuant to the powers under this Section, the FTP is issued by the Central Government. The policy is generally formulated for 5 years and the same is revised/amended by means of an Annual Supplement each year. The policy presently in force is the FTP 2009-14.

2.4 Section 6 empowers the Respondent No.2 to advise the Central Government in the formulation of export and import policy and shall be responsible for carrying out that Policy. Section 6[3] provides that the Central Government, by Order published in the Official Gazette, can direct that any power exercisable by it under the FTDR Act should be exercised by the Respondent No.2 or the officer subordinate to the Respondent No.2 except the powers under Sections 3,5,15,16 and 19 of the FTDR Act that reads as under:

Section 3 grants power to make provision relating to imports and exports;

Section 5 refers to the power to amend the policy;

Section 15 refers to the quasi-judicial powers i.e. power to hear appellate proceedings.

Section 16 refers to the revision powers granted to the Central Government and DGFT to revise the decision or orders passed by the Respondent No.2 and the subordinates of the Respondent No.2 respectively.

Section 19 refers to the power of the Central Government to make rules.

2.5 Pursuant to the aforesaid Section 6 of the FTDR Act, under Para 2.3 of the FTP, the Respondent No.2 has been empowered to interpret the FTP Policy. As per Para 2.3, if any doubt or question arises in respect of interpretation of any provision in the FTP or in the matter of classification of any item in the ITC [HS] or in the HOP, the said question or doubt shall be referred to the DGFT, whose decision thereon shall be final and binding.

2.6 The Central Government vide Para 2.4 of the FTP grants power to the Respondent No.2 to specify procedure to be followed for the purpose of implementing provisions of FTDR Act, the Rules and the Order. Such procedures or amendments,