2008 (1) TMI 812 - HC - Indian Laws

Export Entitlement (Quota) policies - Revalidation of quotas - whether the challenge to the policy in so far as it relates to forfeiture, for non-fulfillment of the export obligation within the time stipulated, is sustainable? Whether the AEPC and Appellate Committees were justified in rejecting the petitioner s claim of force-majeure, while dismissing the Appeals? Held that - The petitioner, as is animated from the pleadings and the annexures, had several opportunities right from the issue of the show cause notice, the personal hearing before the AEPC, the first appeal before the First Appellate Committee as well as the second appeal before the Second Appellate Committee. In fact, even in this petition, there is not a mention of relevant particulars over the cancellation of the purchase order by the buyer. In the instant case, the eight export entitlements under each country categories as set out in Annexure- C show cause notices were the only ones which were revalidated and since no exports were effected under anyone of those entitlements, in other words, the percentage of utilisation being zero, it is not possible to accept the contention of the learned Senior counsel that the overall percentage of utilisation in respect of the exports effected in all other categories of the export entitlements must be taken into account for the purpose of forfeiture. laim of force-majeure is dependant upon facts of each case, based on documentary evidence to establish the existence of such conditions. The petitioner has not been able to show that in identical circumstances, the authority accepted the claim of force-majeure. If the decision to extend the benefit of the claim of force-majeure being dependant upon the facts and circumstances and material on record in a particular case, it goes without saying that any decision rendered in that case, would not, unless facts and circumstances are shown to be identical have application. W.P. dismissed.

Summary

Issues Involved:
1. Challenge to the policy regarding forfeiture for non-fulfillment of export obligations.
2. Justification of AEPC and Appellate Committees in rejecting the petitioner's claim of force majeure.

Detailed Analysis:

1. Challenge to the Policy Regarding Forfeiture:
The petitioner, a garment exporter, was allotted export entitlements under the Garment Export Entitlement policy but failed to effect exports as per the entitlements, resulting in forfeiture of Rs. 3,93,344/-. The petitioner argued that the policy providing for forfeiture of earnest money deposit (EMD) for exports less than 75% and proportionate forfeiture for exports between 75% and 90% was irrational and unreasonable.

The court noted that the petitioner had voluntarily sought revalidation of the quota and furnished a bank guarantee, agreeing to the forfeiture terms. It was held that the petitioner could not approbate and reprobate or assume inconsistent positions. The policy's purpose was to augment foreign exchange, which is vital for the country, and ensure maximum utilization of the quota. The government has the right to formulate policies for economic purposes, and such policies are not subject to judicial review unless they violate statutory provisions or the Constitution. The court cited the case of Gokaldas Images Limited v. Union of India, where a similar challenge was rejected, emphasizing that the government must have free play in economic policies.

2. Justification of AEPC and Appellate Committees in Rejecting the Petitioner's Claim of Force Majeure:
The petitioner contended that the non-performance of export obligations was due to force majeure, specifically the cancellation of orders by foreign buyers. However, the court found that the petitioner did not provide substantial legal evidence to support this claim. The explanation provided by the petitioner lacked documentary evidence of the order cancellation. The authorities, therefore, were justified in rejecting the force majeure claim.

The court also rejected the petitioner's request for an opportunity to present additional evidence, noting that the petitioner had multiple opportunities to provide such evidence during the proceedings before AEPC and the appellate committees. Furthermore, the court dismissed the argument that the overall percentage of exports under various entitlements should be considered for proportionate forfeiture, as the policy clearly required computation based on revalidated entitlements.

Lastly, the court addressed the petitioner's claim that similar benefits were extended in identical cases. It held that force majeure claims depend on the specific facts and documentary evidence of each case, and the petitioner failed to demonstrate identical circumstances in previously decided cases.

Conclusion:
The writ petition was rejected as the court found no merit in the petitioner's arguments. The policy regarding forfeiture was upheld as rational and reasonable, and the authorities were justified in rejecting the force majeure claim due to lack of evidence.