Order date – 07 November 2022

 Facts –

• The petitioner, Sri Subhankar Bhowmik, contend that the officers of the respondent-Union of India have failed in their constitutional and statutory obligation to confer exemption from duty under Custom Notification No.19 of 2015 to only those Transferees of DFIAs, who fully satisfy all the provisions of Foreign Trade Policy in its true spirit and also satisfy the conditions particularly condition (iii) of the said Notification.
• The petitioner further contends that to restrict duty exemption in public interest, the officers shall be directed to issue any Transferrable DFIA or to strictly restrict duty free import entitlement under any Transferrable DFIA already issued, only as per any specific material actually used with quality, technical characteristics and specifications declared by the exporter/original license holder under Appendix 4H, notwithstanding Paragraph 4.27(i) of FTP and the Standard Input Output Norms.

Issue –

• Whether the respondent-Union of India have failed in their constitutional and statutory obligation to confer exemption from duty under Custom Notification No.19 of 2015 to only those Transferees of DFIAs, who fully satisfy all the provisions of Foreign Trade Policy in its true spirit and also satisfy the conditions particularly condition (iii) of the said Notification?

Order –

• The Hon’ble High Court observed the Basic Customs Duty under Custom Notification No.19 of 2015 and the first and second proviso to Paragraphs 4.12(i), 4.12(ii) and 4.30 of Foreign Trade Policy that what petitioner seeks is to read into the provisions of FTP namely in Paragraphs 4.12(i) and 4.12(ii) and also in the first proviso to Condition (iii) of the Customs exemption notification, further words namely “the same quality, technical characteristics and specification”, which are specifically omitted. Such beneficial DFIA scheme which is intended for export promotion cannot be construed in such manner as suggested by the petitioner. Such recourse would be ex facie erroneous and illegal.
• Further words i.e. “same quality, technical characteristics and specification” are absent in Paragraph 4.12 of FTP and also in first proviso to condition (iii) of the said Customs Notification. These further words would apply only while making declaration in shipping bills in respect of sensitive inputs specified in Paragraph 4.30 of FTP, while issuing DFIA in respect of such specified sensitive inputs, or while duty free import of such specified sensitive items under such DFIA to establish close nexus with the specified sensitive inputs used.
• There is also no merit in the contention of the petitioner that although the substantive condition (iii) of Notification No.19 of 2015 concerns mentioning in Transferrable DFIA the details “of materials imported”, in the first proviso the words “as the material used” for the purpose of ascertaining the “material permitted to be imported” would include not only the “material imported” but also even such material used which is “domestically procured”.
• The observations of Hon’ble Allahabad High Court in the case of Sachin Pandey vs. UOI thru Secy. Ministry of Commerce & Industries & Ors., are apt and in accordance with law. Neither the officers of the respondents can be proceeded against for complying with the provisions and notification while following such binding precedents, nor can Original Licence Holder or a Transferee can be denied issuance of any DFIA or exemption under a Transferrable DFIA by subjecting them to any such unintended onerous condition or declaration, direction for which are sought in the petition.
• Hence the appeal is dismissed.