2014 (8) TMI 733 - HC - Customs

Violation against EPCG License - Export obligation - The petitioner had imported cameras and other equipment under the EPCG licence and was obliged to export Video Software equal to the CIF value of the capital goods imported by the petitioner - Recovery of customs duty with interest - forfeiture of Bank Guarantee and action under the Foreign Trade (Development and Regulation) Act, 1992 - Held that - The export obligations were not conditional upon any project or any venture that was planned by the petitioner at the material time. - failure of the venture, that the petitioner intended to pursue in conjunction with Doordarshan would not in any manner absolve the petitioner from complying with its export obligation. According to the petitioner, it invested in equipment and infrastructure in anticipation of producing content for a business channel DD3 proposed to be aired by Doordarshan at the material time. And, Doordarshan abandoning the said channel severely affected the financial health of the petitioner and resulted in the large investments made by the petitioner remaining non-productive. Apparently, abandoning the DD3 channel by Doordarshan, put paid to the plans of the petitioner to export programme capsules that were to be produced for airing on the said channel. Consequently, the petitioner suffered business losses and could not discharge it is export obligations. The losses or profits made by an entrepreneur or its business plans going awry, cannot possibly be a ground that entitles a businessman to avail duty exemption/concession. In the normal course, the petitioner would be required to pay full duty on the equipment imported by it. Under the EPCG scheme the petitioner was exempt from paying full duty only on the condition that it would employ its assets to earn foreign exchange and export video software to the extent of the CIF value of its imports. This condition, admittedly, not having been met, the petitioner would be liable to pay the requisite duty and other levies. - Decided against assessee.

Issues Involved:
1. Quashing and setting aside of the impugned order dated 21.01.2010.
2. Extension of period for fulfilling export obligations.
3. Inclusion of an alternate export product.
4. Recovery of customs duty with interest, forfeiture of Bank Guarantee, and action under the FTDR Act.
5. Alleged impossibility of performance and frustration of export obligations.
6. Validity of the invocation of the bank guarantee.
7. Calculation of the extension period for fulfilling export obligations.

Detailed Analysis:

1. Quashing and Setting Aside of the Impugned Order:
The petitioner sought the quashing of the letter dated 21.01.2010, which communicated the EPCG Committee's decision rejecting the extension of the export obligation period and the inclusion of an alternate export product. The court reviewed the facts and circumstances leading to the issuance of the impugned order and found that the petitioner had failed to meet its export obligations despite multiple extensions. The EPCG Committee had validly directed the Regional Authority to initiate action for recovery of customs duty with interest, forfeiture of the Bank Guarantee, and action under the FTDR Act. Hence, the court upheld the impugned order.

2. Extension of Period for Fulfilling Export Obligations:
The petitioner initially obtained an EPCG License on 25.01.1995, with an obligation to export "Video Software" worth US$ 18,41,470 within five years. After failing to meet this obligation, the petitioner was granted an extension of 18 months by the Appellate Authority on 08.06.2006. Despite this, the petitioner failed to export any product during the extended period. The EPCG Committee rejected further extension requests, noting that the petitioner had already availed an extension for fourteen and a half years without making any exports. The court found this decision reasonable given the extensive period already granted.

3. Inclusion of an Alternate Export Product:
The petitioner requested to fulfill its export obligations by exporting cut and polished diamonds instead of video software. The court noted that the Appellate Authority had allowed the petitioner to fulfill its obligations by exporting alternate products under certain conditions. However, the petitioner failed to export any products during the extended period. The EPCG Committee's rejection of the request to include an alternate export product was found to be justified, as the petitioner had not demonstrated any significant exports even with the allowance.

4. Recovery of Customs Duty with Interest, Forfeiture of Bank Guarantee, and Action under the FTDR Act:
The court examined the respondent's reliance on para 106 of the Hand Book of Procedures Volume-I (01.04.1994), which mandates enforcement of legal undertakings and/or bank guarantees in case of failure to fulfill export obligations. The petitioner had not exported any goods by the original deadline of 24.01.2000, leading to the invocation of the bank guarantee. The court upheld the respondent's actions as lawful and in accordance with the stipulated procedures.

5. Alleged Impossibility of Performance and Frustration of Export Obligations:
The petitioner argued that its failure to fulfill export obligations was due to the abandonment of the DD3 channel by Doordarshan, which was beyond its control. The court rejected this argument, stating that the export obligations were not conditional upon any specific project or venture. The court emphasized that business losses or failed ventures do not absolve the petitioner from statutory obligations. The maxim "impossibilium nulla obligatio est" was deemed inapplicable, as the inability to effect exports did not equate to an impossibility of performance.

6. Validity of the Invocation of the Bank Guarantee:
The court found that the invocation of the bank guarantee was not bad in law. The petitioner had failed to fulfill its export obligations within the stipulated period, justifying the enforcement of the bank guarantee to realize the duty amount and interest.

7. Calculation of the Extension Period for Fulfilling Export Obligations:
The petitioner contended that the 18-month extension granted by the Appellate Authority should commence from the date of endorsement of the license for the alternate export product. The court dismissed this contention as an afterthought, noting that the petitioner did not effect any exports during the extended period from 13.09.2007 to 12.03.2009. The court found no basis for further extension or endorsement-related adjustments.

Conclusion:
The court concluded that the respondent's decision to reject the petitioner's plea for further extension and inclusion of an alternate export product was neither arbitrary nor unreasonable. The petition was dismissed as devoid of any merit.

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