2016 (9) TMI 525 - HC - Customs

100% EOU - requirement to achieve positive net foreign exchange (NFE) during every block of five years of its existence - period for computing the block of five years for consideration of NFE - manufacturing activity had commenced on 28.02.2003. the first block of such five years would comprise of financial year 2002-03 to 2006-07 and the second block of five years would comprise of the financial year 2007-08 to 2011-12. - the first block of five years would commence from 01.04.2003 and end on 31.03.2008 and, the second block would be the financial year 2008-09 to financial year 2012-2013 - foreign trade policy - which would be the relevant block period of five years for computing NFE? - Imposition of penalty - sub section (2) of Section 11 of the Foreign Trade Development and Regulation Act, 1992 Held that - the computation of NFE would be financial year wise and which would be the beginning of the financial year following the year under which the manufacturing activity commences. Under no circumstances such period would be the period anterior with the date of manufacturing activity. Even if a literal interpretation of expression used in Clause 6.5 of the foreign trade policy is taken, it refers to the calculation of NFE cumulatively in block of five years starting from the commencement of production - block of five years to begin from 1.04.2003. Monitoring the performance of the unit - period envisaged would be the financial year immediately starting the manufacturing activity - the unit which has not completed one year from the date of commencement of commercial production will not be monitored. Further, a unit which has completed less than five years from the date of commencement of the commercial production, it would be monitored only for the number of completed years. The reference to completed years must be for a broken period between the date of commencement of production and the commencement of financial year. Interpretation of policy not in favor of petitioner - decided against the petitioner.

Summary

Issues Involved:
1. Validity of the block period for computing Net Foreign Exchange Earnings (NFE).
2. Interpretation of Foreign Trade Policy 2004-09 regarding the commencement of the block period.
3. Imposition of penalty under Section 11(2) of the Foreign Trade Development and Regulation Act, 1992.

Detailed Analysis:

1. Validity of the Block Period for Computing Net Foreign Exchange Earnings (NFE):
The petitioner, a company registered under the Companies Act, was granted permission to start a 100% Export Oriented Unit (EOU) and was required to achieve positive NFE during every block of five years as per the Foreign Trade Policy 2004-09. The petitioner achieved positive NFE in the first block but fell short by ?55.73 lacs in the second block, leading to the issuance of a show-cause notice and subsequent imposition of a penalty by the adjudicating authority.

The primary dispute was regarding the period for computing the block of five years for consideration of NFE. The petitioner argued that the block should start from the financial year 2002-03, while the adjudicating authority and appellate authority had different interpretations, leading to the conclusion that the petitioner had negative NFE in the second block.

2. Interpretation of Foreign Trade Policy 2004-09 Regarding the Commencement of the Block Period:
The foreign trade policy stated that NFE shall be calculated cumulatively in blocks of five years, starting from the commencement of production. The adjudicating authority believed the block period should start from the financial year following the commencement of manufacturing, i.e., from 01.04.2003. The appellate authority, however, held that the block period should start from the actual date of manufacturing activity, i.e., 28.02.2003.

The court noted that the policy and guidelines for monitoring the performance of EOU units indicated that the block period should align with the financial year. Clause 6.5 of the policy and the guidelines for annual monitoring and performance review all pointed towards a financial year-based calculation. The court concluded that the block period for NFE should commence from the financial year immediately following the start of manufacturing activity.

3. Imposition of Penalty under Section 11(2) of the Foreign Trade Development and Regulation Act, 1992:
The adjudicating authority imposed a penalty of ?5.50 lacs under Section 11(2) of the Act due to the petitioner's failure to achieve positive NFE in the second block period. The petitioner did not argue that the penalty was disproportionate but contended that the block period calculation was incorrect.

The court upheld the adjudicating authority's interpretation and found no reason to interfere with the penalty imposed. The guidelines and policy provisions supported the financial year-based block period calculation, leading to the conclusion that the petitioner had indeed failed to achieve positive NFE in the second block.

Conclusion:
The court dismissed the petition, concluding that the block period for computing NFE should commence from the financial year following the start of manufacturing activity. The interpretation of the policy and guidelines favored a financial year-based calculation, and the penalty imposed by the adjudicating authority was upheld. The petitioner's arguments regarding the block period were not accepted, and the notice was discharged.