9911796707
TMI Blog2009 (9) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 2-9-2009 - Sanjiv Khanna, J. S/Shri Alok K. Aggarwal with Sanjay S. Chhabra, Advocates, for the Petitioner. S/Shri Vineet Malhotra, Kuljeet Rawal with Ankur Sehti, Advocates, for the Respondent. [Order]. - With the consent of the parties, these writ petitions are taken up for final hearing and disposal. 2. M/s. Modgill Fashion Exports is the petitioner in W.P.(C) 1409/2008 and M/s. Modgill Hosiery Exports Pvt. Ltd. is the petitioner in W.P.(C) Nos. 1408/2008 and 1411/2008. The petitioners have impugned the orders passed by the Apparel Export Promotion Council, the Textile Commissioner and the second Appellate Committee directing the petitioners that they were not entitled to waiver of forfeiture amount for failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quota and the petitioners did not export ready-made garments for the full quantity of quota allocated to them. The Apparel Export Promotion Council, which is the quota administering authority, issued show cause notice to the petitioners for forfeiture of the earnest money etc. on account of under/non-utilization of the quota and thereafter forfeiture orders were passed. These orders have been upheld by the first Appellate Committee and the second Appellate Committee with some modifications. Right of forfeiture of the earnest money deposited in cases of under/non-utilization of quota has been upheld in Gokaldas Images Ltd. v. Union of India, 2006 (193) E.L.T. 264 (Del.) = 2007 (7) S.T.R. 347 (Del.) = 2005 (116) DLT 47 and Bhuvan Exports v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the impugned orders as an appellate forum and substitute its opinion to upset the findings. The authorities have taken into account the said contention of the petitioner but rejected the same holding that power cuts were normal and a business hazard that had to be taken into consideration by an exporter when they had applied for quota. 8. Similarly, the contention the petitioner in W.P. (C) 1411/2008 that they had utilized the quota allocated to the extent of 88.94% and therefore no forfeiture should have been enforced, has no merit. Short fall or under-utilization of the quota is accepted. Forfeiture is imposed in view of the under-utilization or short-fall of the quota. The question whether any forfeiture should be imposed, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Committee cannot be sustained in view of clause 16 of the Garment Export Entitlement Policy 2000-2004, which stipulates that only an exporter was entitled to file an appeal before the second Appellate Committee. Paragraph (vii) of the Clause 16 of the said policy reads as under :- "16. Appeal Against Forfeiture of EMD/BG/POST DATED CHEQUE (i) xxxxxxxxxxxxxxxxxx (ii) xxxxxxxxxxxxxxxxxxx (iii) xxxxxxxxxxxxxxxxxxx (iv) xxxxxxxxxxxxxxxxxxx (v) xxxxxxxxxxxxxxxxxxx (vi) xxxxxxxxxxxxxxxxxxx (vii) An exporter who is not satisfied with the decision of the Textile Commissioner in the matter of a stay application or an appeal, may prefer an appeal against such decision within 45 days of the dispatch of the order of the 1st ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
