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TMI Blog2004 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation) Act, 1992 (hereinafter to be referred to as, the said Act ) came into force on 19-6-1992. The object was to provide for development and regulation of foreign trade and inter alia augmenting exports. Section 5 of the said Act provides for the Central Government to formulate and announce the Export and Import Policy from time to time and to amend that Policy. Section 11 stipulates that no exports can be made except in accordance with provisions of the said Act, Rules and Orders made thereunder as also the Export and Import Policy for the time being in force. Sub-section (2) of section 11 imposes a liability of penalty not exceeding Rs. 1,000 or five times the value of goods in case of violation of provisions of the said Act, Rules or Orders and the amount determined can be recovered as arrears of land revenue. The penalty imposed or confiscation made under the said Act is not to prevent the imposition of any other punishment arising under any other law for the time being in force (Section 12). Section 13 provides for the adjudicating authority for purposes of determination of penalty or confiscation of goods. A person aggrieved by the decision made by the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to since the contention of learned senior counsel for the petitioners was that this is like an alternative system to the said Act, which cannot be so provided. A further submission was made that section 11 of the said Act refers to contraventions of provisions of the Act, Rules and Orders, while non-fulfilment of export obligations may not amount to a contravention. 8. Learned senior counsel for the petitioners relied upon judgment of the Supreme Court in State of Madhya Pradesh v. Thakur Bharat Singh AIR 1967 SC 1170 to contend that all executive action, which operates to the prejudice of any person, must have authority of law. 9. Learned senior counsel also referred to minority judgment of U.P. Co-operative Cane Unions Federations v. West U.P. Sugar Mills Association 2004 (5) SCALE 457 against to substantiate the same plea. Learned senior counsel submitted that on this particular aspect, there is no discussion in the majority decision and by reference to paras 108 to 110 of the judgment submitted that reliance has been placed on Thakur Bharat Singh s case ( supra ). 10. Learned senior counsel for the petitioners referred to judgment of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consequential power in the field of administrative law and the same does not deal with the power of imposing tax and fee. 7. The High Court has referred to the decisions of this Court in Hingir Rampur Coal Co. Ltd. v. State of Orissa AIR 1961 SC 459 and Jagannath Ramanuj Das v. State of Orissa AIR 1954 SC 400 and Municipal Corporation of Delhi v. Mohd. Yasin AIR 1983 SC 617. It has been consistently held by his Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami. Accordingly, there is no occasion to interfere with the impugned decision of the High Court. The appeal, therefore, fails and is dismissed with no order as to costs." (p. 2042) 11. A reference was also made to judgment of the Division Bench of this Court in All India Garment Export Common Cause Guild v. U.O.I. 1989 (42) ELT 167 (Delhi) where a compulsory exaction in the nature of a premium for a particular category of garment entitlement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition on account of the fact that when the decision is on wrong facts or there has been no appreciation of the force majeure clause, which could provide relief to the petitioner. In this behalf, learned senior counsel referred to judgment of the Supreme Court in Dhanrajamal Gobindram v. Shamji Kalidas Co. AIR 1961 SC 1285 to bring forth the distinction between force majeure and vis major. It was observed in para 17 as under : "17. McCardie J. in Lebeaupin v. Crispin 1920-2 KB 714 has given an account of what is meant by "force majeure" with reference to its history. The expression "force majeure" is not a mere French version of the Latin expression "vis major". It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in "force majeure". Judges have agreed that strikes, breakdown of machinery, which, though normally, not included in "vis major" are included in "force majeure". An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to "force majeure", the intention is to save the performing party from the consequences of anything over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a has been stipulated as 30th of September whereafter it has to be surrendered. The exporter has, however, been given the option to get a new lease or life to make the export by grant of extension till 31st of December and nothing compels the exporter to seek such extension. Thus, while considering the extent of obligation met, it is only the extended quota beyond 30th of September to be utilised by 31st of December, which would have to form the basis to determine the percentage of performance. This is also in furtherance of the bilateral agreements to provide for optimum target to be met. 20. It was further submitted that most of the petitioners would be dealing with PPE and the Garment Export Entitlement Policy (GEEP) itself stipulates the conditions attached to such entitlement whereby the same has to be utilised by 30th of September and can be revalidated upto 31st of December if it is backed by EMD/BG. Such revalidation takes place for different entitlement certificates other than FCFS and that forms again a part of the Policy. The conditions for release of the BG/EMD are also stipulated whereby 90 per cent performance entitles release of the EMD/BG. Thereafter, it is depe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te are clear, it must not be reduced to a nullity by the draftsman s unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. 27. In Seaford Court Estates Ltd. v. Asher 1949-2 All ER 155 at p. 164, Denning, L.J. said : When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give "force and life" to the intention of the Legislature ... A Judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it, they would have strengthened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. 28. Though the above observations of Lord Denning were disapproved in appeal by the House of Lords in 1951 (1) All England Law Reports 839 (HL), Sarkar, J. speaking for the Constitution Bench in M. Pentiah v. Muddala Veeramallapa, 1961 (2) SCR 295 : (AIR 1961 SC 1107) adopted that reasoning of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kin and miss the soul of the Regulation. (p. 1784) It was, thus, submitted that object of the said Act as well as GEEP has to be seen and what has been done is in furtherance thereof. 23. Learned counsel further referred to the judgment of learned Single Judge of this Court in CWP No. 308/2002 titled Gopal Clothing Co. Pvt. Ltd. v. Union of India decided on 16-1-2002 where the following observations were made while dealing with the second aspect of calculating the default in compliance of the export obligations for the extended period : "The learned counsel for the petitioner has relied upon para 8A(F)( i )( c ) to contend that since the petitioner had fulfilled the export obligation to the extent of 75% in the entire year there was no reason to impose penalty upon the petitioner or to forfeit the earnest money deposit. In my view, the contention of learned counsel for the petitioner is without any basis inasmuch as the earnest money deposit was made only for the re-validation of the export quota beyond 30th September and not for the entire year ...." The appeal preferred against the said Order being LPA No. 61/2002 was dismissed on 22-1-2002. 24. I have consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the said Act, Rules and Orders and penalties are provided for violating the same while making the export. Sub-section (2) of section 11 refers to contraventions of the provisions of the said Act, Rules and Orders by a person who makes or abets or attempts to make any export. Thus, a mechanism has been set up under section 11 of the said Act where exports are made or attempt to be made in violation of the same. 29. The aforesaid stage has not arisen when the issue of utilisation of the entitlement is in question. The condition imposed for grant of entitlement is, thus, a stage prior to the same and is a check to ensure that the exporter does export the garments. The procedure comes into play when no such export is made and not when there is a contravention while making the export. In my considered view, this is the true construction of the Policy read with the said Act. 30. This aspect has to be also considered on the larger issue for the very objective sought to be achieved under the said Act as well as under the Policy. The object is to maximise foreign exchange. As noticed above, garment export is peculiar in its nature because quotas are provided for each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra ). In fact, there is no dispute about the same. In appropriate cases, force majeure conditions have been taken as a basis for reduction or waiver of penalty. There are, however, some cases in which interference may be called for on this account because of lack of proper appreciation on the part of the competent authorities and the appellate authorities and in some of the cases, the same occurring on account of the inordinate delays in passing orders whereby the very basis of the arguments may have been forgotten. For example, learned senior counsel for the petitioners referred to WP (C) No. 8043/2003 to contend that wrong facts were noted and the force majeure principle was considered only at the first appellate authority stage. 35. Now, it would be appropriate to deal with individual cases to determine where certain factual pleas call for interference. i. WP (C) No. 8043/2003: This is a case where the appellate authority heard the appeal on 20-3-1997 and the order was passed 4 years later on 7-5-2002. The plea of force majeure has been declined. There is some inconsistency on facts, which have arisen and, in my considered view, merely on account of this inordinate del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard the matter, had passed the order. Though there was nothing on record, learned senior counsel for the petitioner stated that the said allegation was made with sense of responsibility and the Order dated 31-5-2004 records that in case this allegation is found to be false, the writ petition is liable to be dismissed with exemplary costs. Moreover, in the factual written synopsis, not even a plea about this is sought to be agitated clearly showing that this plea has no basis. I, thus, consider it appropriate to burden this petitioner with costs of Rs. 3,000 to be paid to the respondents. v. WP (C) No. 9397/2004: Though the factual detail has been given about this matter; in response, the respondent has stated that there is no such writ petition and this fact is correct. vi. WP (C) No. 3674/2004 : The only grievance made is that only a short notice was given for hearing of the second appeal and the order of the first appellate authority was delayed. It, however, has to be noticed that cogent reasons have been recorded by all the authorities and the petitioner failed to produce documentary evidence. This matter, in my considered view, also calls for no interference. vii. WP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate committee in pronouncing the orders. The hearing took place on 26-11-1997 while the orders were passed in July, 2000. The case of the petitioner on force majeure did not find favour with the first appellate authority or the second appellate authority. The question posed was whether this matter should be remanded back or this Court itself should consider the matter on the basis of the evidence to be filed by the petitioner, which was produced before the first appellate authority and a direction was, thus, passed that in order to enable this Court to consider the matter, the evidence produced before the first appellate authority should be filed on record. This Order was passed on 15-3-2004. Thereafter, the matter has been listed on 5-5-2004, 6-5-2004, 28-7-2004 whereafter it was finally heard on 14-10-2004 and judgment was reserved. No such evidence, as was relied upon by the petitioner before the first appellate authority, was filed before this Court over a number of months. I see no reason why this Court should, thus, interfere in exercise of jurisdiction under Article 226 of the Constitution with the orders of the appellate authority despite there being an element ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated balance available on the date of application for which benefit was sought by the petitioner. Thus, the matter, in my considered view, does not call for any interference. xix. WP (C) No. 7178/2004 : The petitioner has pleaded that fabricator of the garments suffered fire in the godown. The response is that the disputes were pending between the petitioner and their suppliers since May/June, 1996 while the revalidation of quota in question was in 1998. All these aspects have been considered by the appellate committee and, in my considered view, do not call for any interference by this Court. xx. WP (C) No. 3678/2004 : This is a case of delay of 3 years by the first appellate committee in deciding the matter and, in my considered view, on that account alone the impugned order needs to be set aside and the matter remanded back to the first appellate committee to pass a fresh order on the appeal. xxi. WP (C) No. 7125/2003 : The petitioner has pleaded that the printing and dying work was to be completed by M/s. Meher Prints by 30-11-2000, but the factory was closed and sealed on 25-11-2000 in pursuance to directions of the Hon ble Supreme Court and by that time, it was too ..... X X X X Extracts X X X X X X X X Extracts X X X X
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