2013 (11) TMI 1001 - HC - Customs

Forfeiture of Bank gurantee - Utilization of export entitlements - Non utilization of FCFS Quota - Held that - despite releasing additional quota to the exporters, the Government could not achieve the desired results and, therefore, imposing penalty on the defaulting exporters in terms of the undertaking given by them to AEPC sub-serves a valid public interest. In the absence of such penalty, there may be further shortfall in the quota utilization as there would be no pressure on the exporters to achieve the desired target. In any case, there is no material before the Court to show that in the years in which there was shortfall in utilization of second part of the quota on the part of the petitioners, the country was able to achieve 100% or at least 89% capacity utilization. The plea taken by the petitioners, therefore, is liable to be rejected - Decided against assessee.

Summary

Issues Involved:
1. Legality of AEPC's allocation of excess quota.
2. Methodology for calculating quota utilization.
3. Justification of penalty in the absence of shortfall in national quota utilization.

Detailed Analysis:

1. Legality of AEPC's Allocation of Excess Quota:
The petitioners contended that AEPC's allocation of excess quota was ultra vires the Garment Export Entitlement Policy and thus AEPC had no right to impose penalties. However, the court noted that historically, there has been a gap between the quota issued and the quota actually utilized by exporters. To mitigate this, AEPC released additional quotas to ensure optimum utilization and prevent loss of foreign exchange. The court held that releasing additional quotas was in public interest and did not cause any harm to the petitioners. The court emphasized that exporters, while seeking extensions, unequivocally guaranteed to utilize the quota by a specific date and agreed to pay penalties in case of default. Therefore, the petitioners could not challenge the penalties on the ground of excess quota allocation by AEPC. The court referenced the case of M/s Gokaldas Images Ltd. vs. Union of India, where it was held that the Garment Export Entitlement Policy was statutory and not abandoned by AEPC's actions.

2. Methodology for Calculating Quota Utilization:
The petitioners argued that AEPC's method of calculating the percentage of extended quota alone, without considering the entire year's exports, led to absurd results. The court, however, upheld AEPC's methodology, stating that the policy only allowed for the extension of the second part of the quota valid till 30th September, and not the first part valid till 31st May. Therefore, AEPC was justified in considering only the exports made after the extension. The court referred to the case of Gokaldas Images Ltd. vs. Union of India, which supported AEPC's approach of assessing performance based on the extended quota period and not the entire year.

3. Justification of Penalty in the Absence of Shortfall in National Quota Utilization:
The petitioners claimed that penalties were unjustified in the absence of a shortfall in national quota utilization, arguing that it would lead to unjust enrichment of the government. The court rejected this contention, noting that penalties served a valid public interest by ensuring exporters strive to meet their quotas. Without penalties, there could be further shortfalls in utilization, as exporters would lack the incentive to meet targets. The court found no evidence that the country achieved 100% or at least 89% capacity utilization in the years of the petitioners' shortfall, thus upholding the penalties.

Conclusion:
The court dismissed the writ petitions, finding no merit in the arguments presented. The interim orders were vacated, and no costs were awarded.