2019 (9) TMI 83 - HC - Customs

Refusal to renew license - Redemption of advance authorization issued to the petitioner - Removal of deficiencies for the consideration of its application for revalidation of advance authorization - DRI s contention is that it would complete the investigation within a period of 5 years from the concerned exports - HELD THAT - There is no provision in the Act or the Rules that would entitle the DGFT to withhold the petitioner s request indefinitely. Rule 7 of the Rules indicates that the DGFT may refuse to grant or renew the licences. However, the same has to be done by an order in writing and only for the reasons as stated therein. Thus, the DGFT may refuse to grant or renew the licence if it is of the view that any of the reasons as set out in Rule 7(1) of the Rules are established. And, he is required to pass an order specifically stating the said reason. In the present case, it is alleged that the petitioner has contravened the Act and thus the licence can be refused for the reasons as stated in Rule 7(1)(a) of the said Rules - Similarly, in terms of Rule 10 of the Rules the DGFT may, by an order in writing, cancel the licence if the licensee has contravened any law relating to customs or foreign exchange or the rules and regulations relating thereto. In either case, it would be essential for the DGFT to arrive at a firm conclusion regarding violation of the conditions of licence, or, provisions of the Act or Rules made thereunder. It will certainly not be open for the DGFT to not pass any order or to not take a decision for an indefinite period. This Court considers it apposite to direct the DGFT to take an informed decision within a period of six months from today. It is expected that the DRI would be able to provide the DGFT concrete material, if any, regarding any contravention, if found - applications of the petitioner cannot be deferred indefinitely - petition allowed.

Summary

Issues:
1. Delay in deciding the petitioner's application for redemption of advance authorization.
2. Impugning deficiency letters for revalidation of advance authorization.
3. Refusal of issuance/renewal of advance authorizations by DGFT due to ongoing investigation by DRI.

Analysis:
1. The petitioner filed two petitions, one seeking directions to decide the application for redemption of advance authorization and the other challenging deficiency letters for revalidation. The petitioner fulfilled export obligations but faced delays in obtaining export obligation discharge certificates and renewal of advance authorizations. DRI's investigation against the petitioner further complicated the matter.

2. DRI requested DGFT not to finalize Export Obligation Discharge Certificates due to ongoing investigations. DRI's stance was that investigations could take up to 5 years from relevant exports, citing provisions of the Customs Act, 1962. DGFT, on the other hand, cited Rules 7 and 10 of the Foreign Trade (Regulation) Rules, 1993, allowing refusal of licenses under certain circumstances.

3. The court highlighted that DGFT cannot indefinitely defer decisions based on ongoing investigations by DRI. Rule 7 allows refusal of licenses if violations are established, but DGFT must provide a written order stating the reasons. Similarly, Rule 10 permits cancellation of licenses for contraventions, requiring DGFT to arrive at a firm conclusion promptly. The court directed DGFT to make an informed decision within six months, emphasizing that applications cannot be deferred indefinitely due to ongoing investigations.

4. The deficiency letters issued to the petitioner were deemed untenable as they cited ongoing DRI investigations as the sole reason. The court set aside these deficiency letters, emphasizing that the petitioner cannot address deficiencies related to investigations beyond their control. The petitions were disposed of accordingly, providing clarity on the timelines for decision-making in such cases.