Cus - How and in what manner foreign trade needs to be developed and regulated is to be decided by authorities under - Court must not examine these issues as they are policy decision to be taken by executive: HC
By TIOL News Service
MUMBAI, DEC 30, 2014: THE Petitioner made an application on 24th January, 2014 for availing the benefit of duty credit entitlement under the Served from India Scheme ('SFIS'). That application was dealt with by the authority under the FTDR Act, 1992 and the following was communicated to the Petitioner -
"Your application is deficient due to following reasons:
1. Your request for SFIS stands rejected on the following ground:
1. From shareholding pattern its clear that the majority shares (80.43%) are held by M/s. Thyssen Krupp UHDE GmBH, Germany. So, M/s. UHDE India Pvt. Ltd. is not even a company having majority shareholding by an Indian or an Indian Firm.
2. M/s. UHDE India Pvt. Ltd. is promoting Thyssen Krupp brand and not any Indian Brand. Policy Interpretation Committee in its decision in the meeting held 27.12.2011 clarified that SFIS can be provided only when Indian brand is promoted. Our records show that you have already received SFIS benefits in other FYs. Therefore, you are directed to surrender these benefits immediately.
You are requested to remove above deficiencies within a period of 30 days from the date of issue of this letter, otherwise your case will be treated as closed."
Against this communication, the petitioner filed a Writ Petition before the High Court.
The High Court had enquired with the Revenue counsel as to why a senior level officer of Ministry of Commerce, Government of India, cannot consider the grievance of the Petitioner with an independent and impartial mind.
In response, the Counsel submitted that the matter of this nature need not be examined by the Court because there are alternate remedies provided under the Act itself to question an adjudicatory process. Nonetheless, it was submitted that the Secretary in the Department of Commerce, Government of India would hear the Petitioner or their representatives and duly consider their grievances not only in relation to the communication but with regard to the interpretation placed by the Policy Interpretation Committee in its decision in the meeting dated 27th December, 2011.
The High Court, thereafter, observed –
7] We feel that we should refrain from expressing any opinion. These are not matters which ought to be brought before a Court of law. How and in what manner the foreign trade needs to be developed and regulated is essentially to be decided by the authorities under the Parliamentary statute. If they evolve any policy or take any policy decisions, then, it is equally open for them to consider as to whether cases of parties like the Petitioner would fall within or need to be protected or their rights recognized by any interpretation and made appropriately of such policy decisions. The Court must not examine these issues as not only they are intricate but essentially of a policy decision and to be taken by the executive. It is in the larger public interest and of promoting foreign trade and equally developing but regulating it that the state or the Central Government before us must take such decisions. It may be that the Director General or his colleagues are of a particular view but our anxiety is that matters and issues brought like the Petitioner before us ought to be examined by the Ministry and at the Ministry level so that any doubt or confusion with regard to interpretation of the policy are cleared and the Petitioner can then take a definite stand.”
The High Court expressed that the Secretary, Ministry of Commerce, Government of India, would take a decision as expeditiously as possible and by 30th April, 2015 and until the decision is taken the status quo as prevailing shall be maintained.
The Writ Petition was disposed of.
(See 2014-TIOL-2400-HC-MUM-CUS)
