K.S. Commodities Pvt. Ltd and Anr v. Union of India and Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 28, 2015 bs/gsr.. (corrected & released on 28th November, 2015)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th September, 2015. + W.P.(C) 1345/2015 M/S. SESA STERLITE LIMITED ..... Petitioner Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Manish Garg, Mr. Akshay Bhardwaj, Ms. Shreya Dahiya and Ms. Reena, Advs. Versus UNION OF INDIA & ORS. .....Respondents Through: Mr. Neeraj Jain and Mr. Kavindra Gill, Advs. for R-1 to 3/UOI. AND + W.P.(C) 5317/2015 KONARK EXIM PVT. LTD. ..... Petitioner Through: Dr. G.K. Sarkar, Ms. Malabika Sarkar and Mr. Prashant Srivastava, Advs. Versus DIRECTORATE GENERAL OF FOREIGN TRADE ..... Respondent Through: Mr. Sanjeev Narual, CGSC with Mr. Ajay Kalra, Ms. Meha Rashmi and Mr. Anshuman, Advs. for UOI. AND + W.P.(C) 5288/2015 K.S. COMMODITIES PVT. LTD AND ANR. ..... Petitioners Through: Mr. Vinod Mehta, Adv. Versus UNION OF INDIA AND ORS. ..... Respondents Through: Mr. Manik Dogra, Ms. Nitya and Ms. Nidhi Parashar, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. These petitions are being listed together and have been taken up together for hearing today also. 2. The counsel for the respondents in W.P.(C) No.5288/2015 seek opportunity to file counter affidavit which has not been filed till date. 3. I am however not inclined to give any opportunity for filing the counter affidavit as sought inasmuch as the respondents are the same in all the petitions and counter affidavits have been filed in other two petitions. Moreover, enough opportunity has already been given for filing the counter affidavit and these matters have been listed today for hearing, from 24th September, 2015, on which date no such request was made. 4. The counsels for the respondents Directorate General of Foreign Trade (DGFT) in W.P.(C) Nos.5317/2015 & 5288/2015 state that the challenge in these petitions is to a Notification and thus the matter is to be considered by the Division Bench of this Court. 5. The senior counsel for the petitioner in W.P.(C) No.1345/2015 states that the challenge is not to any Notification to require consideration by the Division Bench of this Court. The counsels for the petitioners in W.P.(C) Nos.5317/2015 & 5288/2015 state that though the prayer paragraphs in their petitions may have been differently worded but the challenge made by them and pressed by them also before this Court is not to any Notification and even if reads so, be treated as the challenge as made in W.P.(C) No.1345/2015. 6. In this view of the matter, the counsels have been heard. I may in this regard also notice that the Registry of this Court vide Notification dated 31st July, 2013 has also clarified that though writ petitions challenging constitutional validity of any Act, Rules or Regulations are to be listed before the Division Bench dealing with that subject but challenge to a policy, scheme or guideline is not to be treated as a challenge to the vires of the Act, Rules or Regulations. 7. The senior counsel for the petitioner in W.P.(C) No.1345/2015 has drawn attention to the Notification No.27(RE-2012)/2009-2014 dated 28th December, 2012 of the Ministry of Commerce & Industry, Govt. of India issued in exercise of powers under Section 5 of the Foreign Trade (Development and Regulation) (FTDR) Act, 1992 read with para 2.1 of Foreign Trade Policy (FTP), 2009-2014 making amendments to the FTP 2009-2014 with immediate effect. By the said amendment, a new paragraph was added at the end of para 3.14.3 of FTP 2009-2014 as para 3.14.4 and which para 3.14.4 is as under: "3.14.4 Incremental Exports Incentivisation Scheme Objective (a) The objective of the Scheme is to incentivize incremental exports. Entitlement (b) An IEC holder would be entitled for a duty credit scrip @ 2% on the incremental growth (achieved by the IEC holder) during the period 01.01.2013 to 31.3.2013 compared to the period from 01.01.2012 to 31.3.2012 on the FOB value of exports. Incremental growth shall be in respect of each exporter (IEC holder) without any scope for combining the exports for Group Company.