Huawei Telecommunications (India) Company Private Limited v. Union of India and Ors

NAVIN CHAWLA, J APRIL 27, 2021/rv/ns/G/P

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserved: 18.03.2021 Date of Decision: 27.04.2021 + W.P.(C) 13249/2019 & CM APPL. 53883/2019 ERICSSON INDIA GLOBAL SERVICES PVT LTD ..... Petitioner Through: Mr.Tarun Gulati, Sr. Adv. with Mr.Kishore Kunal, Mr.Parth & Mr.Manish Rastogi, Advs. versus UNION OF INDIA & ORS ..... Respondents Through: Ms.Shiva Lakshmi, CGSC. (12) W.P.(C) 10146/2020 & CM APPL. 32318/2020 (13) W.P.(C) 1633/2020 & CM APPL. 5740/2020 HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY PVT LTD ..... Petitioner Through: Mr.Tarun Gulati, Sr. Adv. with Mr.Kamal Sawhney, Mr.Sparsh Bhargava & Mr.Ankit Sachdeva, Advs. versus UNION OF INDIA AND ORS. ..... Respondents Through: Ms.Shiva Lakshmi, CGSC. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. All the above three petitions raise similar grievances and are therefore, adjudicated by way of a common judgment. For sake of convenience, the facts have been taken from WP (C) 13249 of 2019. 2. The said petition has been filed by the petitioner challenging the instructions dated 22.05.2019, addressed by the respondent no. 4 to Page 2 the respondent no. 3, advising that all services, whether Engineering Services (Network Engineering Services, Management and Operation of Network Services (Managed Services) in Telecom Sector or Management Consulting Services) in Telecom Sector, are ineligible for the benefit under the Service Exports from India Scheme (hereinafter referred to as 'SEIS') announced by the Foreign Trade Policy 2015-20. The petition further impugns the order(s) dated 11.06.2019 and 03.06.2019, whereby the respondent no. 3 has rejected the claim of the petitioner(s) for benefit under the SEIS for the financial years 2015-16, 2016-17 and 2017-18, respectively. 3. To appreciate the dispute between the parties, few facts need to be highlighted. 3.1 The respondent no. 1, in exercise of its powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the 'Act'), notified the Foreign Trade Policy, 2015-20 (hereinafter referred to as the 'FTP'). 3.2 Chapter 3 of the FTP details the "Exports from India Schemes". 3.3 Paragraph 3.01 of the FTP states that there shall be following two schemes for exports of Merchandise and Services respectively: (a) Merchandise Exports from India Scheme (MEIS); (b) Service Exports from India Scheme (SEIS) Page 3 3.4 The present set of petitions relate to claim of the petitioners under SEIS. 3.5 The petitioner raised the claim for issuance of Duty Credit Scrips under SEIS claiming that it is providing Engineering Services under Central Product Classification (CPC) Code 8672 and Management Consulting Services under CPC Code 865, as mentioned in Appendix-3D of the FTP. 3.6 By way of the impugned instructions dated 22.05.2019, addressed by the respondent no. 4 to the respondent no. 3, respondent no. 4 opined/instructed that all services, whether Engineering Services (Network Engineering Services, Management and Operation of Network Services (Managed Services) in Telecom Sector or Management Consulting Services) in Telecom Sector, are ineligible for SEIS. 3.7 Following the above instructions, the claims of the petitioner for benefit of SEIS were rejected by the impugned Orders dated 03.06.2019 and 11.06.2019. 4. The learned senior counsel for the petitioner(s) submits that the Impugned Instructions dated 22.05.2019 are contrary to the FTP inasmuch as they seek to create an additional category of ineligible services for availing the benefit of SEIS. He submits that the phrase "Service Providers in Telecom Sector" relates to the service providers who are in the telecom sector and not those who provide services to the telecom sector. In this regard, he has drawn the attention of this Page 4 Court to the Handbook of Procedures (Volume I) for the period 27.08.2009 to 31.03.2014, which, in paragraph 3.6.1, had declared the service providers in telecom sector mentioned at S.No.2(C) of Appendix-10 thereto a