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Therefore, in terms of Section 6 of the FTDR Act, the provisions related to FTP or import and export can only be legislated by the Parliament or by the Respondent No.1 in its capacity as a delegate. The Respondent No.2 through Para 8.3.6 of the HOP has sought to C/SCA/11031/2013 CAV JUDGEMNT incorporate provisions of Duty Drawback Rules to deemed exports mutatis mutandis which is impermissible in view of the fact that no power has been granted to Respondent No.2 either under the FTDR Act or the FTP to legislate either directly or by way of incorporation by reference. It is trite that the separation of power between the legislature and executive forms part of the basic structure of the Constitution of India and any attempt by the executives to legislate without appropriate authority under the law would tantamount to violation of the basic structure of the Constitution of India. That power to legislate is enshrined under Article 246 of the Constitution of India and has been conferred on the Parliament and the State Legislature. Any attempt by the executives to legislate without the authority of law would thus be a colourable device and therefore, in violation of Article 246 of the Constitution of India. That the duty drawback Rules if permitted to be adopted by Respondent No.2 by way of incorporation by reference, it would amount to permitting the Respondent No.2 to deal with the matters relating to duty and tax refunds as provided under Section 75 of the Customs Act, Section 37 of the Central Excise Act and Section 93A read with Section 94 of the Finance Act, 1994. Such permission to the Respondent No.2 to adopt the duty drawback rules without any power to legislate either expressly or otherwise would tantamount to levying or collecting tax without authority of law and would, thus, be in violation of Article 265 of the Constitution of India. Therefore, Para 8.3.6 of the FTP is ultra vires the FTDR Act and is in violation of Article 246 and 265 of the C/SCA/11031/2013 CAV JUDGEMNT Constitution of India.

judicial/adjudicating functions.

7.8 Para IC[ix] of the affidavit does not require any comment. However, the Respondent No.2 as the representative of the delegated authority [i e. Central Government] cannot be said to have the power to legislate in the garb of laying down the procedures merely by virtue of powers bestowed on him under Para 2.4 of the FTP. It is trite in law that a delegated authority cannot sub-delegate unless delegate C/SCA/11031/2013 CAV JUDGEMNT has been specifically permitted to do so under the mother legislation [the principle of delegates non protest delegate]. While the scheme of the FTDR Act specifically confers power onto the delegate [i.e. Central Government] to make rules [as per Section 19 of the FTDR Act] there is no other provision that permits the Central Government to further delegate the rule making power or power to legislate to any third party including the Respondent No.2. On analysis of the scheme of the FTDR Act and the principles of the administrative law stated above, it would be appropriate to state that the mother legislation [i.e. FTDR Act] has bestowed the power on the Central Government to formulate the delegated legislation [i.e. FTP] and further subordinate legislations by way of rules pursuant to Section 19 of the FTDR Act. However, no power can be seen to have been granted to the Respondent No.2 to legislate and therefore, the power conferred on the Respondent No.2 under Para 2.4 of the FTP, to specify procedures has to be interpreted strict senso to mean "only administrative guidelines" and none other. If in discharge of such power and, in the garb of laying down the procedures, the Respondent No.2 incorporates by reference any substantive law, [as has been done in Para 8.3.6 of the HOP by incorporating the Customs and Central Excise Duty Drawbacks Rules, 1995 ["duty drawback rules"] it would be an action fraught with impropriety for reasons of having travelled beyond the power conferred on it and breaching the fundamental principle of administrative law and violating the basic structure of the Constitution which provides for separation of power between the C/SCA/11031/2013 CAV JUDGEMNT executive and the legislature.

27. In the above context, Mr Ghosh, the learned advocate appearing on behalf of the petitioner, strenuously contended that the aforesaid provisions, namely, Para 2.3 of the FTP, Para 8.3.6 of the HOP and Para 7 of the ANF-8 form are in gross violation of Article 14 and 19[1] [g] read with Articles 246 and 265 of the Constitution of C/SCA/11031/2013 CAV JUDGEMNT India and the provisions of FTDR Act.

28. We find that the Respondent No.2, namely, DGFT, through Para 8.3.6 of the HOP has incorporated by reference the provisions of Duty Drawback Rules mutatis mutandis to the FTP and HOP. We find substance in the contention of Mr Ghosh that the HOP is nothing but an administrative guideline as would appear from a combined reading of Para 2.4 of the FTP and Section 6 of the FTDR Act. We have already pointed out that Section 3 of the FTDR Act grants power to the Respondent No.1 to make provisions relating to imports and exports and the Respondent No.1 under Section 5 of the FTDR Act can formulate and announce the foreign trade policy. It further appears from Section 6(3) of the FTDR Act that of the powers conferred upon the Respondent No.1 under the FTDR Act, except those provided in Sections 3,5,15,16 and 19, all others can be delegated to the Respondent No.2 by order published in the Official Gazette. We find that the Respondent No.2 through Para 8.3.6 of the HOP has sought to incorporate the provisions of Duty Drawback Rules to deemed exports mutatis mutandis which is not permissible in view of the fact that no power has been granted to the DGFT under the FTDR Act to legislate either directly or by way of incorporation by reference. It is now a settled law that the separation of power between the legislature and executive forms part of the basic structure of the Constitution of India and any attempts by the executives to legislate without appropriate authority under the law would amount to C/SCA/11031/2013 CAV JUDGEMNT violation of the basic structure of the Constitution of India. The power to legislate is incorporated under Article 246 of the Constitution of India and such power has been conferred on the Parliament and the State Legislature. Moreover, the power to frame Duty Draw Back Rules under the FTDR Act can be legislated by the Central Government only in exercise of power conferred under Section 19 in the manner prescribed under the FTDR Act and the same cannot be delegated to the Respondent no. 2 as expressly prohibited by Section 6(3) of the above Act.