LexCHOWGULE & COMPANY LIMITED versus ASSISTANT DIRECTOR GENERAL OF FOREIGN TRADE & OTHERS
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A B C D E F G H 693 [2022] 8 S.C.R. 693 693 CHOWGULE & COMPANY LIMITED v. ASSISTANT DIRECTOR GENERAL OF FOREIGN TRADE & OTHERS (Civil Appeal No. 8225 of 2009) NOVEMBER 04, 2022 [M. R. SHAH AND KRISHNA MURARI, JJ.] Export-Import: Indian Foreign Trade Policy – Additional licence – Benefit of – Appellant-exporter’s claim for grant of additional licence under the Exim Policy 1998-91 based on eligible export of “processed iron ore” in the years 1990-1991 – Rejected by the High Court holding that under the amended/new Exim Policy 1992-1993, the exported item-“processed iron ore” was an item specified in Appendix 12 and as per Appendix 12, the exported item “processed iron ore” was ineligible for the purpose of grant of benefit of additional licence – On appeal, held: Director General of Foreign Trade-DEFT/Union is free to change the Exim Policy and consider from time to time on which items there shall be an incentive and on which items there shall not be any incentive – To grant the benefit of an incentive is a policy decision which may be varied and/or even withdrawn – No exporter can claim the incentive as a matter of right – Under the circumstances, the doctrine of promissory estoppel shall not be applicable to such a policy decision with respect to incentive – Appellant cannot be allowed the benefit of additional licence on the ground that some others might have been granted such benefits de hors the scheme, which otherwise the appellant is not entitled to under the scheme – There cannot be any negative discrimination which may perpetuate the illegality – Thus, the order passed by the High Court is upheld – Policy decision. Dismissing the appeal, the Court HELD: 1.1 The appellant is claiming the benefit of additional licence on the export of “processed iron ore” exported during the Exim Policy 1990-93. It is an admitted position that the “processed iron ore” had been exported during April, 1990 to March, 1991. Under the Exim Policy 1990-93, “Minerals and Iron Ore” are included in the list of ineligible items. As per Exim A B C D E F G H 694 SUPREME COURT REPORTS [2022] 8 S.C.R. Policy 1988-1991, only the export of “unprocessed iron ore” was ineligible to get the benefit of additional licence. However, when the new Exim Policy 1990-93 came into existence, the “Minerals and Iron Ore” are in the list of ineligible items-the appellant had actually exported “processed iron ore” during the period April, 1990 to March, 1991, which was under the regime of new Exim Policy 1990- 93 and under the new Exim Policy 1990-93, the export of “Minerals and Iron Ore” are included in the list of ineligible items, the appellant has been denied the benefit of additional licence. At this stage, it is required to be noted that under the Exim Policy, the benefit of additional licence which as such was in the form of an incentive is available on actual export in the preceding year and the benefit of such export for the purpose of additional licence to the FOB value shall be available in the next year. Under the Exim Policy, the benefit of additional licence shall be available only on actual export in the previous year and that too to eligible items only. Under the circumstances, when the appellant exported the “processed iron ore”, i.e., during the period between April, 1990 to March, 1991, the “Minerals and Iron Ore” as per Appendix 12 were in the list of ineligible items, the appellant is rightly denied the benefit of additional licence. The appellant had never challenged the new Exim Policy 1990- 93. Therefore, in the absence of any challenge to the new Exim Policy 1990-93 under which on export of “Minerals and Iron Ore”, there shall not be the benefit of additional licence, the new Exim Policy 1990-93 shall be applicable. [Para 5][701-G-H; 702-A-E] 1.2 The appellant is claiming the benefit of additional licence under the Exim Policy 1988-91 on the ground of promissory estoppel. However, when the new Exim Policy 1990-93 is held to be applicable under which on export of ‘Minerals and Iron Ore”, there shall not be any benefit of additional licence, the appellant cannot be permitted to claim the benefitof additional licence under the old Exim Policy, which was not in existence. [Para 6][702-F- G] 1.3 As regards the submission on behalf of the appellant on doctrine of promissory estoppel, it is required to be noted that the benefit of additional licence was in the form of an incentive. A B C D E F G H 695 The DEFT/Union is free to change the E
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