Kalyan Jyoti Sengupta, J. - (1.) By this writ petition the petitioner has challenged the impugned circular being No. 28 (RE): 98 dated 28th July, 1998 being Annexure-GG to the petition. Admittedly, the writ petitioners are the exporters of the textile goods namely Gents jackets with or without lining both knitted and woven. In this case the petitioner's grievance is that in terms of the export policy the petitioner exported 8 consignments of textile goods abroad and those goods are concerning woven materials. According to the petitioner they are entitled to get duty exemption (DEPB) credit as per notified rate as in Annexure-F to the writ petition. The applications were made for the exports which had taken place immediately after the aforesaid impugned circular being issued. Those applications were not processed in accordance with the previous notification wherein there is no mention of charging value cap for DEPB entitlement sofar as woven materials are concerned. The department concerned, however, insisted on complying with the aforesaid clarificatory circular which is under challenge and sought to impose value cap of Rs. 200/- in case of woven materials also. Mr. Mehta, learned Counsel appearing in support of the application contends that the aforesaid clarificatory circular issued by the Deputy Director is wholly illegal and ultra vires the provision of Sections 3 and 5 of the Foreign Trade (Development and Regulation) Act, 1992. According to him the aforesaid impugned circular was not notified in the official gazette and the same cannot be treated as an amendment of the previous notification. This amendment can only be done under the provisions of Section 5 read with Section 3 of the aforesaid Foreign Trade (Development and Regulation) Act, 1992. He also contends that this clarificatory power is not extended to make amendment either. In support of his submission he has relied on a Division Bench judgment of this court . He contends that by the previous notification certain benefit was given to the exporters so far as the aforesaid materials are concerned and such benefit cannot be taken away by the Deputy Director of Foreign Trade in terms of the aforesaid impugned clarificatory circular. Further he contends that the clarificatory circular cannot take place by way of amendment. In support of his submission he has relied on the decision of the Supreme Court . Therefore, he contends that the applications which have been made by his client should be directed to be considered ignoring the impugned aforesaid circular. He has shown me an interim order passed by this Court in this matter on 6th April, 1999 whereby the petitioners were allowed to make the applications for taking duty exemption entitlement with a value cap of Rs. 200/- per piece even for woven gents jacket with or without lining without prejudice. According to Mr. Mehta in terms of the aforesaid interim order his client has already made this application and the same has been processed. He contends that if the writ petition succeeds then the aforesaid interim order will not have any binding effects and his application for the duty exemption entitlement should be granted without value cap of Rs. 200/- per piece in case of woven materials also.
(2.) Mr. Basu, learned Senior Advocate contends, first of all, that the petitioner has alternative remedy. The petitioners should have referred this dispute under Clause 4.13 of Export and Import Policy which was then applicable and secondly, the Director could have taken decision in this regard. Since there is dispute and doubt as to whether value cap is imposable in case of woven materials or not this could have been finally decided by the Director himself. Therefore, the writ petition should not be allowed.
(3.) On merit Mr. Basu contends that clarification has been given by the Director as there were various problems and some disputes and doubts arose at one point of time, the Deputy Director is quite competent to issue such clarification by the aforesaid impugned notice to obviate this problem. He contends that the effect of the circular is not really an amendment of any provision of law. By this notice only the doubt has been removed and so value cap has been imposed in case of woven gents jackets with or without lining. Mr. Basu, however, in his usual fairness submits that if I hold that this circular has got effect of amendment of the previous circular issued under the aforesaid Act for Duty Entitlement Pass Book Scheme then possibly there is some merit in the contention of the writ petition.;