The Policy Circular No. 06/2018, denying SEIS benefits to port operators, was ruled ultra vires, affirming petitioner's legitimate claim based on prior approvals under the FTP 2015–2020.

ORDER :

NAGESH BHEEMAPAKA, J.

1. The case of the petitioner-Adani Gangavaram Port Limited (AGPL), insofar as relevant for the purpose of disposal of this writ petition, is that it is a port operator engaged in maritime logistics and cargo handling services and was granted Service Exports from India Scheme (SEIS)scrip benefit under the Foreign Trade Policy (FTP) 2015–2020. In the ordinary course of its business, the petitioner entered into cargo handling service agreements with its customers, under which it coordinated berthing, handled customs documentation including filing of bills of entry, discharged cargo from vessels, transported cargo to stackyards, stored it, and loaded it for evacuation by road or rail, in addition to providing berthing, de-berthing, pilotage, and anchorage services. For certain partial marine operations, it entered into separate marine operation service agreements with KEI-RSOS Maritime Limited on 21.10.2008 and with Great Offshore Limited on 05.05.2015 for the provision of tugboats, marine craft, and personnel. According to the petitioner, these third-party arrangements did not alter the fact that the core port and cargo-handling services were rendered by the petitioner itself.

1.1 On the basis of its foreign exchange earnings from notified maritime services, the petitioner applied for SEIS benefits for the financial years 2015–16 and 2016–17. The application for FY 2015–16 was submitted on 23.03.2017, and after verification, the Directorate General of Foreign Trade granted SEIS scrips/benefits on 30.03.2017. Similarly, the application for FY 2016–17 was submitted on 04.11.2017, and SEIS benefits were granted on 16.11.2017. The petitioner emphasizes that these scrips were issued strictly in accordance with the FTP 2015–2020 and were also utilized or transferred well before any controversy arose, and in any event prior to 22.05.2018.

1.2 The dispute arose only after Respondent No. 2 issued a Policy Circular No.06/2018 dated 22.05.2018, which purported to retrospectively restrict SEIS eligibility to “actual service providers” such as tug operators and ship brokers, thereby excluding port operators and infrastructure providers. The petitioner alleges that this Circular sought to amend the FTP through an executive clarification rather than a Notification under Section 5 of the FTDR Act, and thus illegally redefined eligibility criteria that were never part of the FTP 2015–2020. Relying on this circular, the Directorate of Revenue Intelligence, Hyderabad Zonal Unit, issued a letter dated 29.10.2019 under Section 108 of the Customs Act, 1962, addressed to the petitioner, seeking detailed information about all SEIS and SFIS scrips availed from 2014–15 onwards, including license numbers, issue dates, total amounts, and utilization status. The petitioner responded by letter dated 06.11.2019, enclosing comprehensive details and asserting that the scrips were lawfully granted and utilized, while also informing the DRI that a parallel inquiry was being conducted by the Kolkata Zonal Unit.

1.3 The petitioner further states that despite the Bombay High Court, in Atlantic Shipping Private Limited v. Union of India , 1W.P.No.1827 of 2019, dated 09.03.2021 (Bombay High Court), quashing Policy Circular No. 06/2018 by judgment dated 09.03.2021 as ultra vires the FTDR Act, the DRI continued its inquiry. By letter dated 25.11.2020, the DRI sought clarifications regard