9911796707
TMI Blog2008 (1) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, in other words, the percentage of utilisation being zero, it is not possible to accept the contention of the learned Senior counsel that the overall percentage of utilisation in respect of the exports effected in all other categories of the export entitlements must be taken into account for the purpose of forfeiture. laim of force-majeure is dependant upon facts of each case, based on documentary evidence to establish the existence of such conditions. The petitioner has not been able to show that in identical circumstances, the authority accepted the claim of force-majeure. If the decision to extend the benefit of the claim of force-majeure being dependant upon the facts and circumstances and material on record in a particular case, it goes without saying that any decision rendered in that case, would not, unless facts and circumstances are shown to be identical have application. W.P. dismissed. - 26955 of 2003 (GM-RES) - - - Dated:- 16-1-2008 - Ram Mohan Reddy, J. REPRESENTED BY : S/Shri K. Lakshminarayana Rao for N. Manohar, Advocate, for the Petitioner. S/Shri K. Sachindra Karanth, Advocate, G.L. Rawal and Devadass, Senior Counsel, for the Respondent. [Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for modernization of machinery under the New Investors Entitlement (NIE), to encourage investments in industry; (c) 5% under Non-quota export (NQE) entitlement to encourage diversification of exports to non-quota countries; (d) 10% on First Come First Serve (FCFS) to provide equal opportunities to all exporters on basis of High Value Realisation. The framing of policies, it is said, is in exercise of power conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (No. 22 of 1992) and Item No. 8 of Appendix-I Schedule-2 of ITC (HS) Classification of Export and Import published under he Export and Import policy. It is further stated that in order to implement the policy, an Apparel Export Promotion Council (AEPC) headed by Director General is designated as Quota Administering Authority, on behalf of the Government, responsible for allocation of quota in terms of the policy. The availability of quota, it is said, vastly over strips the demand and in view of the restricted availability, commands a premium. Major importers of textile garments being the quota countries, it is essential to ensure quotas are fully utilised and are not allowed to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot effected exports, the non performance was not due to willful failure but for reasons beyond its control. (d) The earlier decisions in appeals involving identical issues and identical set of facts, the authorities having accepted the claim of force-majeure, cannot refuse to accept the petitioner s claim of force-majeure in the fact situation of this case. 5. Per contra, learned Senior counsel Sri. G.L. Rawal for Respondent No. 1 contends that the challenge to the policy is unavailable to the petitioner as the garments exported having fallen short of the quota allotted to it within the period stipulated, voluntarily sought for revalidation of the entitlement beyond the period, by filing an application in the required proforma XII to the policy, and a Bank guarantee in the proforma Annexure-VI to the policy. According to the learned Senior counsel, in terms of the policy, the petitioner was fully aware of the consequences of proportionate forfeiture of Bank guarantee on failure to export garments upto 90% but not less than 75%, and forfeiture in full if less than 75%. Petitioner having accepted the terms of revalidation, it is argued, cannot be heard to contend that the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained unfulfilled. Due to non-performance of the export obligation, in its entirety, despite the extended period of time, and in terms of the revalidation, the AEPC issued notice calling upon the petitioner to show cause as to why action should not be taken to forfeit the monies from out of bank guarantee, which was responded to by the petitioner. The AEPC, not being satisfied with the explanation offered, forfeited Rs. 3,93,344/-, by order dated 29-10-1998 Annexure- D . This order when carried in appeal before the First Appellate Committee, was confirmed by order dated 3-4-2000 Annexure- F . So also, the Second Appellate Committee dismissed the petitioner s appeal by order dated 21-3-2003 Annexure- H . 8. In the admitted facts noticed supra, the questions for decision making are, (a) whether the challenge to the policy in so far as it relates to forfeiture, for non-fulfillment of the export obligation within the time stipulated, is sustainable? (b) Whether the AEPC and Appellate Committees were justified in rejecting the petitioner s claim of force-majeure, while dismissing the Appeals? 9. Indisputably, the revalidation of the quota allotted to the petitioner was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r constitution. 11. In almost identical circumstances, a learned Single Judge of this Court in the case of Gokaldas Images Limited v. Union of India in W.P. No. 8539/2003 and connected Writ petitions, by Order dated 12-3-2003, repelled the contention that the policy providing for forfeiture and imposition of penalty for non-fulfillment of the obligation under the export quota could be challenged by an exporter who had had the benefit of a policy, following the decision of the Apex Court in the case of PTR Exports (Madras) Pvt. Ltd. and Others v. Union of India and Others reported in 1996 (86) E.L.T. 3 (S.C.) = AIR 1996 SC 3461, in the matter of interference by writ courts with policy matters, by observing thus : 4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enclosure is the broad reasons for the shortfall supported with documentary evidence. The enclosure at Page 27 reads as Reasons for shortfall without enclosing document. The reasons do not disclose material particulars as to the date on which the importer cancelled the purchase order. Similarly in the proforma of the Second Appeal, Annexure G , as no documents are appended these were no material records constituting substantial legal evidence of the fact that the importer had cancelled the order much before 31-12-1997. In other words, when the petitioner did not lay a foundation by producing intrinsic material which would clinch the issue as to whether or not the importer had, as a matter of fact, cancelled the purchase order before 31-12-1997, the authorities were fully justified in rejecting the said claim. Although learned Senior counsel for the petitioner would request that an opportunity be extended to the petitioner to place the material to establish cancellation of the purchase order, in my opinion, such an indulgence in the fact situation is uncalled for. The petitioner, as is animated from the pleadings and the annexures, had several opportunities right from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
