SHELL EXPORTS (KANDLA) Vs. UNION OF INDIA & ANR.
LAWS(SC)-2016-5-105
SUPREME COURT OF INDIA (FROM: GUJARAT)
Decided on May 04,2016

SHELL EXPORTS (KANDLA) Appellant
VERSUS
Union Of India And Anr. Respondents

JUDGEMENT

- (1.) This appeal, filed by the appellant-assessee, challenges the correctness of orders dated 03.11.2004 passed by the High Court of Gujarat in Special Civil Application No. 11755 of 2003. By the said judgment, the High Court has dismissed the writ petition which was filed by the appellant herein claiming the benefit under Notification No. 07/2002-2007 dated 05.06.2002. Obviously, with the dismissal of the writ petition, the benefit has been denied by the High Court.
(2.) To recapitulate the factual matrix in brief, the Government of India had come out with Export and Import Policy 2002-2007 (hereinafter referred to as 'EXIM Policy') which was promulgated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as 'Act'). It is not in dispute that this Policy is statutory in nature. The Act also empowers the Central Government to amend, modify or rescind such policy. Exercising this power which is conferred by Section 5 of the said Act, Notification No. 7/2002-2007 dated 05.06.2002 was issued amending/correcting the EXIM Policy. By this Notification, amendments were made to paragraph 7.9 of the EXIM Policy. Since it is the interpretation of this Notification which is called in question, it would be useful to reproduce the said Notification in its entirety. It reads as under: "In exercise of powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (No.22 of 1992) read with paragraph 1.1 of the Export and Import Policy, 2002-07, the Central Government hereby amends/ corrects the Export and Import Policy, 2002-07 as under: 1) A new sub para {numbered as (iii)} shall be added to paragraph 7.9(I). The text of the new sub paragraph would be: - (iv) Benefit of DEPB in lieu of Drawback for supplies made to SEZ or unit in SEZ. Accordingly the amended para 7.9(a)(1) would read as under: 7.9(a) Supplies from DTA to SEZ units shall be eligible for the following: (I) DTA supplier shall be entitled for: - (i) Relevant entitlements under paragraph 8.3 of the policy. (ii) Discharge of export performance, if any, on the supplier; (iii) Benefit of DEPB in lieu of Drawback for supplies made to SEZ or unit in SEZ. This issues in public interest."
(3.) It is clear from the above that by the aforesaid Notification, the EXIM Policy was amended. One of the amendments, as can be noticed, was that benefit of Duty Entitlement Pass Book (DEPB) in lieu of Drawback for supplies made to Special Economic Zone (SEZ) or unit in SEZ were also to be given which means that whenever supplies from Domestic Tariff Area (DTA) to SEZ units were to be made under the EXIM Policy, these were to be treated as exports and entitled to Drawback under the EXIM Policy. However, what was stipulated by the said Notification was that the concerned person making such 'exports' can avail the benefit of DEPB in lieu of Drawback.;


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