2024 (7) TMI 628 - HC - Customs

100% EOU - interpretation of statute - Section 11 (2) of the FTDR Act, 1992 - levy of penalties for non-fulfillment of export obligations under a Letter of Permission/Letter of Undertaking - HELD THAT - A reading of the provision makes it clear, Sub-section (2) can be invoked only when a person attempts to or succeeds in making an import or export in contravention of the provisions of the FTDR Act, the associated Rules and Orders, or the Foreign Trade Policy. In the present case, there is no allegation that the petitioner attempted to make any export or import in violation of the FTDR Act of 1992, or the Rules, Orders made thereunder, or the Foreign Trade Policy. In similar circumstances, the Supreme Court in the case of M/S. EMBIO LIMITED 2024 (5) TMI 684 - SUPREME COURT ruled that when the allegation pertains to the failure to fulfill the obligation to export goods within a specified period of five years, and there is no allegation of attempting to make an export or import, the imposition of a penalty under Section 11 (2) of the FTDR Act of 1992 cannot be sustained. In the absence of any contravention of the provisions of the Act, the Rules, Orders made thereunder, or the Foreign Trade Policy, the impugned order passed by the first respondent imposing a penalty of Rs. 2 crore on the grounds of a shortfall in the export of manufactured goods is without authority - the impugned order is quashed - petition allowed.

Summary

Issues:
Violation of export obligations under the Letter of Permission/Letter of Undertaking
Imposition of penalty under Section 11 (2) of the FTDR Act, 1992

Analysis:
The petitioner, a company incorporated under the Indian Companies Act, 1956, entered into a Joint Venture Agreement with a foreign partner committing to buy back a percentage of goods manufactured by the petitioner. The petitioner received approval to establish a 100% export-oriented unit for manufacturing silk products subject to specific conditions, including achieving a minimum level of Net Foreign Exchange Earning. The petitioner was required to fulfill an export turnover commitment over five years. Despite commencing production and making exports, the petitioner fell short of the export obligations, leading to a penalty imposition by the first respondent under Section 11 (2) of the FTDR Act, 1992.

The petitioner contended that the failure to meet export obligations did not amount to a contravention of the FTDR Act, 1992, as Section 11 (2) could only be invoked in case of attempting to make exports or imports in violation of the Act, Rules, or export policy. The petitioner cited the decision in the case of M/S. EMBIO LIMITED vs. DIRECTOR GENERAL OF FOREIGN TRADE & ORS to support this argument.

In contrast, the Deputy Solicitor General representing the Union of India argued that the petitioner's non-fulfillment of obligations under the Letter of Permission/Letter of Undertaking warranted the penalty as per the provisions of the Act and Rules. The impugned order was deemed to be in conformity with the law.

Upon considering the arguments, the Court analyzed Section 11 of the FTDR Act, emphasizing that penalties under Sub-section (2) could only be imposed for actual contraventions involving attempts to make imports or exports against the Act, Rules, or policy. As there was no allegation of such contravention in the present case, the penalty imposed lacked authority. Referring to the legal principles established by the Supreme Court in M/S. EMBIO LIMITED, the Court ruled in favor of the petitioner, quashing the penalty orders issued by the first and second respondents.

In conclusion, the Court allowed the petition, setting aside the penalty orders dated March 31, 2008, and September 7, 2010, imposed on the petitioner for failing to meet the export obligations specified in the Letter of Permission/Letter of Undertaking.