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We would like to bring your kind notice the sufferings faced by us and our peers because of the DGFT Public Notice No. 35, dated 30.10.2013. DGFT Public Notice No. 35, dated 30.10.13, is directly contradicting the provisions of Foreign Trade Policy & Handbook of Procedures. It also seeks to implement its effect with retrospect which is against the bar of Promissory Estoppel. The said DGFT Public Notice, enforces the conditions of DGFT Notification No. 31, Dated 1st August 2013 even on DFIA Licences issued prior to the issuance of Notification No. 31/(RE-2013). Once the DFIA is issued it is factored in by the Exporter whilst planning exports. Implementing any condition with retrospect will not only hamper exports but will also impact the exporter’s credibility adversely, in turn impacting the country’s credibility in the international markets. Big groups and Multi nationals have the resources in place to cushion the effects of such enforcements, but for small exporters, SMEs & Young exporters such conditions will prove to be fatal. Para 1.05 of the Foreign Trade Policy 2015 Transitional Arrangements states (a) Any License / Authorisation / Certificate / Scrip / any instrument bestowing financial or fiscal benefit issued before commencement of FTP 2015-20 shall continue to be valid for the purpose and duration for which such License/Authorisation/ Certificate / Scrip / any instrument bestowing financial or fiscal benefit Authorisation was issued, unless otherwise stipulated. DGFT Public Notice No. 35 is directly controverting the above mentioned para by retrospectively withdrawing the benefit that was bestowed when a DFIA is issued. The hon’ble High Court of Chennai in the case of Hoewitzer Organic Chemical Co. Versus The Director General of Foreign Trade Ministry of Commerce and others (W.P. No. 24371 of 2012) has ruled “Since the license in this case was issued on 15.4.2010 and on the date on which the license was issued the clarification dated 31.7.2008 and the DGFT Policy Circular dated 24.3.2009 were in force, the license would get the benefit of the said clarification and the DGFT Policy Circular. Subsequent change in policy by way of Public Notice No.84/2009-14, dated 23.7.2010, clarification dated 23.9.2010 and the Policy Circular No.13, dated 31.1.2011 will have no consequence in respect of the license that has already been issued. Accordingly, the said issue is decided in favour of the petitioner.” The hon’ble Delhi High Court in the case of Malik Tanning Industries, M/s. Kavish Impex Pvt. Ltd. Versus Union of India And Others (W.P.(C) 6387/2012 & CM No. 17030/2012, W.P.(C) 4754/2014 & CM 9467/2014) has opined that “The power exercised by the Central Government is a power delegated by the Legislation. It is well settled that in absence of an express provision enabling a delegate to make delegated Legislation with retrospective effect, no such power can be inferred. Section 5 of the Act does not empower the Central Government to frame policy with retrospective effect. Thus, the schemes framed under the Foreign Trade Policy cannot be altered or amended with retrospective effect.” In the same case The hon’ble Delhi High Court has ruled that “In view of the aforesaid, neither the central government, nor DGFT would have the power to amend the Foreign Trade Policy or withdraw any export benefit with retrospective effect.” The hon’ble Punjab & Haryana High Court in the case of Pushpanjali Floriculture Pvt. Ltd. Versus Union of India And Others (CWP No. 12647 of 2016) has in the judgement stated that “It is declared that the rest of the said impugned Notification No 31 (RE-2013)/2009-2014 dated 01/08/2013, Public Notice No 35 (RE-2013)/2009- 2014 dated 30/10/2013, and Notification No 90 (RE- 2013)/2009-2014 dated 21/08/2014, would not apply to DFIAs issued prior to 01/08/2013” Even top level political leaders have criticized retrospective taxation and policy. • Shri Prakash Javdekar Hon’ble Minister of Information and Broadcasting – "There has to be a stable tax regime in which retrospective taxation has no place." • The Bharatiya Janata Party in its manifesto came heavily on the UPA's retrospective taxation, calling it "tax terrorism" which not only creates anxiety amongst the business class and negatively impacts the investment climate, but also dents the image of the country. • Shri Narendra Modi Hon’ble Prime Minister of India in an interview with an electronic channel called decision on retrospective tax as ill-advised and said, "We shouldn't take decisions with retrospective effect. We need to create confidence in our system, but such decisions defeat the purpose." • Shri Arun Jaitley Hon’ble Finance Minister in the Lok Sabha said, "One thing we have made very clear: No retrospective tax creating fresh liabilities will be imposed." Blaming the previous UPA government of creating such an anomaly, he said the NDA government, under Prime Minister Narendra Modi, is trying to rectify it. "Retrospective tax was created by you. This mess of tax terrorism was yours and we are trying to bring civility back by clearing it." "This government will not ordinarily bring about any change retrospectively which creates a fresh liability." "At this juncture I would like to convey to this august house and also the investors community at large that we are committed to provide a stable and predictable taxation regime that would be investor friendly and spur growth." DGFT Public Notice No. 35 retrospectively enforces the conditions of DGFT Notification No. 31, Dated 1st August 2013 even on DFIA issued prior to the issuance of Notification No. 31/(RE-2013)and it has been more than three years since our exports have suffered because of the said DGFT Public Notice and Notification, and since then all DFIA has been held up for EODC at DGFT RA or is pending submission of EODC with us since DGFT RA is insisting on declarations on shipping bills as per PN 35 or where EODC is done, the DFIA is kept unutilized due to unjust enforcement of the above mentioned public notice by customs, hence it is imperative to allow revalidation of such DFIA for a period of 1 year. In light of the above it is requested that DGFT Public Notice No. 35 is rescinded and all DFIA issued prior to DGFT Notification No. 31 dated 1.08.2013 be exempted from its scope and allowed revalidation for a period of 1 year.

Related documents/Photos:

Problems faced due to retrospective effects of DGFT Public Notice No. 35, dated 30th October 2013

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