Ujjal Bhuyan J.1. Heard Mr. Prakash Shah along with Mr. Jas Sanghavi, learned counsel for the Petitioner; and Mr. Pradeep Jetly, learned senior counsel alongwith Mr. Jitendra B. Mishra, learned counsel for the Respondents.2. By filing this Petition under Article 226 of the Constitution of India, Petitioner seeks a direction to the Respondents to issue balance/additional duty credit scrips for an amount of Rs.4,22,16,175.73 under the Target Plus Scheme.3. Case of the Petitioner is that it is a partnership firm constituted under the Partnership Act, 1932 having its office at Worli, Mumbai. It is engaged in the manufacturing of electrical cables and various other electrical equipments which are thereafter exported. Because of its high volume of exports, Petitioner was awarded and categorized as a three star export house.4. As part of its foreign trade policy, Government of India introduced a scheme on 31.08.2004 called the Target Plus Scheme which was made effective from 01.04.2004. Objective of the Target Plus Scheme was to accelerate growth in exports by rewarding star export houses with minimum threshold export turnover of Rs.10 crores in the previous year. It is stated that the scheme provided for three slabs of entitlement of duty credit scripts which were as under:-“a. Where the percentage incremental growth of exports was above 20% but below 25% the duty credit entitlement was 5% of the incremental growth.b. Where the percentage incremental growth was above 25% but below 100% the duty credit entitlement was 10% of the incremental growth.c. Where the percentage incremental growth was above 100% the duty credit entitlement was 15%.”5. According to the Petitioner, it made net exports of Rs.42,21,61,757.21 in the year 2004-2005. Net exports of the Petitioner increased to Rs.91,45,81,389.72 in the next year i.e. 2005-2006, percentage of increase being 119.34 percent over the previous year. Thus, Petitioner became eligible under category ‘c’ of the scheme having incremental growth in exports above 100%, thus entitled to 15% of the incremental growth.6. Directorate General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, Government of India i.e. Respondent No.2 issued Notification No.08 of 2006 dated 12.06.2006. The said notification was issued in exercise of powers conferred by section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 1.3 and paragraph 3.7.8 of the Foreign Trade Policy, 2004-2009 making amendments to the Target Plus Scheme for the exports effected during the period 01.04.2005 to 31.03.2006. It was stated that the rate of entitlement would be 5% of the incremental growth clarifying that the said amendment would take effect for exports retrospectively from 01.04.2005.7. Initially Petitioner had made an application under the scheme to Respondent No.3 on 18.07.2006 for issuance of duty credit scrips for an amount of Rs.6,33,24,263.00 at the rate of 15% of incremental growth covering the period 2005-2006 i.e., 01.04.2005 to 31.03.2006. However, in view of the Notification No.08 of 2006 Petitioner modified its prayer in terms of the said notification restricting its claim to 5% of the duty credit entitlement without prejudice to its claim to 15% entitlement.8. It is stated that Respondent No.3 issued scrips to the Petitioner to the extent of 5% of the incremental growth vide licence dated 14.02.2007 for an amount of Rs.2,11,08,087.85.9. Retrospective amendment to the Target Plus Scheme was challenged by export houses in different High Courts by way of Writ Petitions. Ultimately, the matter reached the Supreme Court and in Director General of Foreign Trade Vs. Kanak Exports, 2015 (326) ELT 26, Supreme Court held that amendment to the Target Plus Scheme could not be applied retrospectively. In other words, amendment to the above scheme would be prospective from 12.06.2006 and would not cover the exports for the year 2005-2006.10. Following the judgment of the Supreme Court, Respondent No.2 issued Notification No.6/2015-2020 dated 08.05.2017 making the amendment to the Target Plus Scheme effective prospectively rescinding the Notification No.08 of 2006 dated 12.06.2006. This was followed by Trade Notice No.06 of 2018, also dated 08.05.2017 issued by Respondent No.2 setting up Zonal Committees for scrutiny of claims made under the above scheme, besides laying down the procedure for making and scrutiny of applications.11. In view of the trade notice, Petitioner wrote to Respondent No.3 vide letter dated 30.05.2017 stating that Petitioner was eligible to claim the remaining benefit of 10% (15% - 5%) under the scheme for the incremental growth in exports for the year 2005-2006 and requested the said authority to issue the balance scrips at the earliest. Respondent No.3 by his letter dated 19.07.2017 directed the Petitioner to submit certain documents including no dues certificate which the Petitioner says it submitted vide the forwarding letter dated 26.07.2017. However, by subsequent letter dated 15.09.2017, Respondent No.3 directed the Petitioner to submit a further set of documents. Those documents were also submitted by the Petitioner vide the forwarding letter dated 05.10.2017 besides furnishing necessary explanations to the queries raised by Respondent No.3. It is stated that Respondent No.3 continued with his efforts to procure more and more documents from the Petitioner and in this connection issued letter dated 23.10.2017 directing the Petitioner to submit a few more documents which were also submitted with clarifications by the Petitioner vide letter dated 09.11.2017.12. Not content with the above, Respondent No.3 issued letter dated 08.03.2018 to the Petitioner directing it to submit revised no dues certificate. Responding to the said letter, Petitioner submitted revised no dues certificate on 18.04.2018 and requested Respondent No.3 to issue the additional scrips. Unfortunately, there was no reply by Respondent No.3. However, Petitioner continued requesting Respondent No.3 vide letters dated 22.05.2019, 24.06.2019 and 14.10.2019 to issue necessary licence under the scheme for the remaining scrips for the balance amount of Rs.4,22,16,175.73 (Rs.6,33,24,263.00 – Rs.2,11,08,087.85) : the actual figure should be Rs.4,22,16,175.15. Authorized representatives of the Petitioner also met officials of Respondent No.3 and explained to the officials about the claim of the Petitioner. However, there was no response on the part of Respondent No.3 and consequently the balance duty scrips were not issued.13. Aggrieved by such inaction of Respondent No.3, Petitioner has preferred the present Writ Petition seeking the relief as indicated above.14. When the matter was first taken up by this Court on 13.03.2020, learned counsel for the Respondents had informed the Court that representation of the Petitioner would be placed before the Zonal Committee constituted by the Directorate General of Foreign Trade in the meeting scheduled on 16.03.2020. The matter was thereafter deferred to 26.03.2020 to be listed under the caption “for directions”.15. However, because of the outbreak of Covid-19 pandemic and the resultant lock-down, the case could not be taken up. Ultimately, the matter was taken up on 06.10.2020. On that date, Mr. Pradeep Jetly, learned senior counsel for the Respondents submitted that meeting of the Zonal Committee was held on 29.09.2020. In view of such submission, this Court directed that the minutes/proceedings of the said meeting be placed before the Court to enable passing of effective order.16. Thereafter an affidavit was filed on behalf of the Respondents by Mr. Satya Raja Shekhar, Deputy Director General of Foreign Trade, Mumbai bringing on record the minutes of the meeting of the Zonal Committee, Mumbai held on 25.09.2020.17. Mr. Prakash Shah, learned counsel for the Petitioner submits that there is absolutely no justifiable reason for the Respondents not to issue duty credit scrips for the balance amount of Rs.4,22,16,175.73 under the Target Plus Scheme. He has referred to the Trade Notice No.06 of 2018 dated 08.05.2017 as well as to orders of the Supreme Court dated 26.11.2019 and 04.02.2020 in Misc. Application No.1748 of 2018 in WP(c) No.27 of 2008 (Reliance Industries Ltd. Vs. Union of India) and contends that as per the Trade Notice dated 08.05.2017 as explained by the Supreme Court in the above two orders all that is required for an eligible exporter is to produce no dues certificate, further clarifying that such dues pertain to government dues only, which are payable and still subsisting. On a pointed query by the Court, Mr. Prakash Shah, learned counsel for the Petitioner submits that there is no government dues payable by the Petitioner to the government and no dues certificate, including the revised certificate, were submitted to Respondent No.3. In the circumstances he submits that necessary direction may be issued to the Respondents to issue duty credit scrips for the balance amount of Rs.4,22,16,175.73 under the Target Plus Scheme.18. Mr. Pradeep Jetly, learned senior counsel representing the Respondents submits that there is a typographical error in the order dated 06.10.2020; the date of the meeting of the Zonal Committee was typed as 29.09.2020 whereas such a meeting was held on 25.09.2020. Petitioner’s claim was considered by the Zonal Committee whereafter it was noted that as was reported by the customs authorities there were dues related to nonsubmission of BRC for the draw back claim. In such circumstances, the Zonal Committee agreed to give conditional approval to the claim of the Petitioner subject to clearance of the customs department. He submits that Petitioner should approach the customs authorities and obtain a clearance letter from them. Once the clearance letter is issued, the balance claim of the Petitioner under the scheme shall be considered.19. Submissions made by learned counsel for the parties have received the due consideration of the Court. We have also perused the materials on record.20. We have noticed the salient features of the Target Plus Scheme which was made effective from 01.04.2004. Petitioner had made net exports of Rs.42,21,61,757.21 in the year 2004-2005. This increased to Rs.91,45,81,389.72 in the year 2005-2006, percentage of increase being 119.34 percent. Thus in terms of the scheme, Petitioner became eligible to the benefit of 15% of duty credit entitlement. However, vide Notification No.08 of 2006 dated 12.06.2006 benefit of entitlement was curtailed to 5% with retrospective effect from 01.04.2005. When petitioner lodged claim under the scheme for duty credit entitlement, it was issued duty credit scrips to the extent of 5% of the incremental percentage of exports vide licence dated 14.02.2007 for an amount of Rs.2,11,08,087.85. Supreme Court in Kanak Exports (supra) while upholding the validity of the Notification No.08 of 2006 however held that the said notification could not be applied retrospectively; it could only be applied prospectively. In tune with the Supreme Court judgment, Respondent No.2 issued Notification No.6/ 2015-2020 dated 08.05.2017, besides issuing trade notice on the same date setting up Zonal Committees for scrutiny of claims. It was thereafter that Petitioner renewed its claim for realization of the balance/additional duty credit scrips under the scheme for the balance amount of Rs.4,22,16,175.73 (Rs.4,22,16,175.15) covering the period from 01.04.2005 to 31.03.2006 which was earlier denied on account of retrospectivity. Following a series of correspondence, Petitioner has submitted all the required documents including no dues certificate and revised no dues certificate.21. It is seen that 11th meeting of the Zonal Committee, Mumbai with regard to issue of balance claims under the Target Plus Scheme was held on 25.09.2020. Agenda item No.4(1) dealt with the claim of the Petitioner. The resolution that was adopted is as under:-“The Committee noted as follows:1. The applicant was represented by Smt. Jyoti Patil. She confirmed that there are no dues pending against them in terms of the orders of the Hon’ble Supreme Court dated 04.02.2020.2. The firm has submitted No Dues certificate as prescribed in the Trade Notice 06 of 2017.3. However, there were dues reported by Office of JNCH Customs related to non-submission of BRCs for the drawback claimed. The representative claimed that they do not have any BRCs pending from their side even till 2017-18.4. The Members of the Zonal Committee agreed to give conditional approval to the claim Rs.42216175/- subject to clearance of JNCH Customs Department regarding to the dues. The Applicant should approach the concerned Office for a clearance letter and the Member of the Zonal Committee from the concerned Department would facilitate for faster reply regarding the same.5. The Members from Customs and DRI also suggested that a member from TAR may also be included into the committee for getting an all India perspective.”22. While Mr. Prakash Shah, learned counsel for the Petitioner has categorically stated that no government dues are payable by the Petitioner, based on the above minutes Mr. Pradeep Jetly submits that customs office had reported that there are dues pertaining to non-submission of BRC. It is in the above context that the Zonal Committee agreed to grant conditional approval to the claim of Rs.4,22,16,175.00 of the Petitioner subject to clearance of the customs department.23. From the above, it is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of Rs.4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending.24. On a query by the Court, it was explained by learned counsel for the parties that BRC stands for ‘Bank Realization Certificate’. It is submitted that such a certificate is issued by the concerned bank after receipt of foreign remittance in connection with the export.25. At this stage, we may advert to Trade Notice No.06 of 2018 dated 08.05.2017 issued by the Joint Director General of Foreign Trade. Clause VIII thereof reads thus:-“VIII. Pending dues to Government: In order to ensure that existing government dues, if any, are recovered from the eligible entities for which claims are now being settled based on the judgment of the Hon’ble Supreme Court, a certificate from these entities must be taken that no dues are pending to government / departments including DGFT. If any due is there, then it must be paid before release of the claim under TPS. In case of large claims, this certificate may be sent to the concerned Departments / Ministries for time-bound comments. In case of DGFT, any dues towards recoveries on account of any of DGFT’s Schemes including DFCE shall have to be adjusted first before issue of TPS scrips.For the purpose of submitting the certificate under this sub-paragraph, if the firm is a Limited Company, the Certificate shall be signed by the Managing Director or two Directors of the Company, along with the seal of the Company. Alternatively the Certificate shall be signed by a senior executive of the Company of the rank of General Manager and one of the Directors of the Company who have been authorized by the board of Directors for this purpose, along with the seal of the Company. In such cases, Certificate shall be countersigned by the Company Secretary. In case of a Partnership / Proprietorship firm, the Certificate shall be signed by all the Partners / Proprietor respectively. In all cases, the certificate shall be countersigned by the statutory auditor of the company / firm.”26. From the above, it is evident that what is required to be submitted is a certificate certifying that no dues are pending against the government including its departments. In the two orders dated 26.11.2019 and 04.02.2020 passed in the case of Reliance Industries Ltd. (supra), Supreme Court has clarified that clause VIII of the Notification and Trade Notice dated 08.05.2017 refers to pending dues to government only and that government dues means dues which are payable and still subsisting.27. Without entering into details, we can safely say that the word ‘dues’ means something which is payable. Shorn of semantics, the word ‘dues’ means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word ‘dues’ with the word ‘government’, the expression ‘government dues’ would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid.28. Reverting back to the minutes of the meeting held on 25.09.2020, it is seen that no amount of dues stated to be pending against the government has been mentioned. There is no reference to any demand or demand notice or quantification of any government dues. Alleged non-submission of Bank Realization Certificate after receipt of foreign currency/ remittance on successful completion of an export cannot be construed to be a due, not to speak of any pending government due.29. In any case, Respondents have already granted to the Petitioner partial benefit under the Target Plus Scheme vide licence dated 14.02.2007 i.e., scrips to the extent of 5% of the incremental export growth for the year 2005-2006. Present claim pertains to remaining 10% on the said export growth for the same period. When the Respondents had already issued the licence and had granted partial benefit to the Petitioner under the Target Plus Scheme
Please Login To View The Full Judgment!
on 14.02.2007, there cannot be any valid and justifiable reason for non-release of the balance amount of benefit which has now become due to the Petitioner. Withholding of the same is not at all justified.30. The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005. On intervention of the Supreme Court, the retrospectivity was removed and the amendment was given effect prospectively from 12.06.2006. Petitioner was granted the 5% benefit for the year 2005-2006. After the Supreme Court intervention, Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme.31. In that view of the matter, Respondents are directed to issue the necessary licence to the Petitioner for the balance/additional benefit of duty credit scrips for the amount of Rs.4,22,16,175.00 for the year 2005- 2006 under the Target Plus Scheme within a period of four weeks from the date of receipt of a copy of this judgment.32. Writ Petition is accordingly allowed but without any order as to costs.33. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.