2016 (8) TMI 143 - HC - Customs

Failure to fulfill export obligation - EPCG scheme - The petitioner seeks a review of the aforesaid judgment on the ground that the exports obligation was met in terms of Deutsche Mark (DM) and its rupee equivalent ought to have been adjusted against the export obligation mentioned in rupee terms. - Held that - If only the Rupee specified amount is met, it would result in reduction in quantum of foreign currency (US ) and would provide an unintended relief to the petitioner. Such interpretation of the EPCG Scheme would defeat its very objective, which was to earn more foreign exchange/convertible currency for the Indian economy. Hence, the petitioner cannot seek to circumvent the export obligation by bringing in lesser foreign exchange. It is also not known whether at the relevant time Deutsche Mark was kept in the basket of freely convertible currency, by Government of India. No apparent error in the order is shown. - Decided against the petitioner.

Summary

Issues: Review of judgment dismissing LPA No. 582 of 2003 regarding export obligation under EPCG scheme met in Deutsche Mark (DM) instead of US dollars.

Analysis:
1. The petitioner imported machinery under the EPCG scheme with an obligation to export goods worth three times the CIF value of the imported goods, specifically mentioned in US dollars. The export obligation was to be discharged in freely convertible currency, with US dollars specified. The petitioner argued that the obligation was met in Deutsche Mark (DM), and its rupee equivalent should be adjusted against the export obligation in rupee terms. However, the court held that the obligation, being in US dollars, had to be met accordingly, even if discharged in DM. The potential appreciation of DM against the Indian rupee could have reduced the petitioner's foreign exchange obligation, contrary to the scheme's objective of earning more foreign exchange for the Indian economy. The court emphasized that meeting only the rupee-specified amount would defeat the scheme's purpose, as it would provide unintended relief to the petitioner by bringing in lesser foreign exchange.

2. The court rejected the petitioner's argument to set up a new case and circumvent the export obligation by relying on the rupee equivalent of the obligation met in DM. It highlighted that the scheme aimed to increase foreign exchange reserves and cautioned against interpreting it in a manner that would reduce the quantum of foreign currency earned. Additionally, the court noted the lack of evidence regarding whether Deutsche Mark was considered a freely convertible currency by the Government of India at the relevant time. As the obligation was clearly specified in US dollars, the court dismissed the review petition, emphasizing that no error was apparent in the original judgment. The dismissal was based on upholding the scheme's objective of maximizing foreign exchange earnings for the Indian economy.

3. In conclusion, the court found no merit in the review petition and dismissed it accordingly. The judgment reaffirmed the importance of adhering to the terms of the EPCG scheme, particularly regarding the obligation to fulfill export commitments in the specified foreign currency, in this case, US dollars. The decision aimed to prevent any unintended benefits to the petitioner by allowing adjustments based on rupee equivalents and underscored the scheme's overarching goal of bolstering India's foreign exchange reserves.