2013 (4) TMI 390 - HC - Customs

Revalidation, renewal and extension of the period of the Duty Free Import Authorization ( DFIA ) License denied - Petitioner seeks to challenge the orders declining to revalidate on the ground that the request could not be considered in terms of paragraph 2.13.1 of the Hand Book of Procedures - Held that - There is no dispute before this Court, during the course of hearing, that the orders of the Foreign Development Officer were subject to the remedy of an appeal under Section 9(5) read with Section 15, since the effect of those orders is to deny the request for renewal or revalidation. The Petitioner failed to avail of the statutory remedy within the period of forty five days or even within the further period of thirty days prescribed by the proviso to Section 15(1). The petition before this Court was filed only on 11 May 2012. Ordinarily the exercise of jurisdiction under Article 226, in the face of an alternate remedy, can only be by way of an exception where an order has been passed without jurisdiction or in violation of fundamental rights or in breach of the principles of natural justice. In the present case, the Petitioner failed to espouse the alternate remedy which is available and has approached this Court much after the period prescribed by the statute has expired. Thus such a petition cannot be entertained. Article 226 cannot be taken recourse to where within the limitation provided by law, the statutory remedy was not availed of. In terms of paragraph 2.13.1, revalidation of such freely transferable authorization was not permissible unless the validity had expired while in custody of the Customs authority/R.A. In the affidavit-in-reply filed by the Respondents it has been stated that the Petitioner while applying for revalidation did not state that the licenses expired under the custody of the Customs authority/R.A. nor was any certificate produced from the Customs authorities to this effect. The averment in the affidavit-inreply has not been controverted. In these circumstances, plainly even on merits, the Petitioner was not entitled to the grant of revalidation.

Summary

Issues:
Challenge to rejection of revalidation of Duty Free Import Authorization License (DFIA) by Foreign Trade Development Officer based on statutory provisions and availability of alternate remedy.

Detailed Analysis:

1. Challenge to rejection of revalidation of DFIA License: The Petitioner sought a direction to revalidate, renew, and extend the period of the DFIA License, challenging the orders declining revalidation between specific dates. The Petitioner claimed compliance with export obligations and subsequent rejection of revalidation requests by the Foreign Trade Development Officer.

2. Availability of Alternate Remedy: A preliminary objection was raised on the maintainability of the petition, citing the availability of a statutory alternate remedy not availed by the Petitioner within the prescribed period. The relevant statutory provisions under the Foreign Trade (Development and Regulation) Act, 1992 were discussed, emphasizing the appeal mechanism against orders refusing to grant or renew licenses.

3. Statutory Provisions and Appeal Mechanism: Sections 9(2), 9(5), and 15(1) of the Act were analyzed to highlight the appeal process against orders related to licensing decisions. The judgment clarified the hierarchy of appeal authorities and the prescribed time limits for filing appeals under the Act.

4. Judicial Interpretation: The judgment emphasized the importance of availing statutory remedies within the prescribed time limits, barring exceptional circumstances like violations of natural justice for seeking recourse under Article 226 of the Constitution. It was noted that failure to utilize the statutory remedy within the specified period could render a petition under Article 226 not maintainable.

5. Merits of Revalidation Request: The judgment briefly touched upon the merits of the revalidation request, highlighting the specific provisions in the Foreign Trade Policy and Hand Book of Procedures regarding revalidation of import authorizations. It was concluded that the Petitioner was not entitled to revalidation based on the provisions and the lack of necessary documentation.

6. Conclusion: The judgment dismissed the petition citing non-maintainability due to the failure to utilize the statutory alternate remedy within the prescribed period. Additionally, it was noted that the Petitioner's grievance lacked merit even upon evaluating the alternate submission, leading to the dismissal of the petition without costs.

This detailed analysis of the judgment from the Bombay High Court provides a comprehensive understanding of the issues involved, the statutory provisions considered, the importance of availing alternate remedies, and the ultimate conclusion reached by the court.