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TMI Blog2008 (1) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... n Reddy, J. REPRESENTED BY : S/Shri Shyam Koundinya A.S. and Vinay Paul T.K., Advocates, for the Petitioner. S/Shri N. Devhadass, Sr. CGC for T. M. Venkata Reddy, CGC and K. Sachindra Karanth, Advocate, for the Respondent. [Order]. Petitioner, a manufacturer/garment exporter when allotted export entitlements under the First Come First Serve (FCFS) quota in country category US/359, 347, CA/2 EU/8 during the year 1999 in terms of the notification dated 16-10-1996 (for short policy ) effected 85.42% of the entitlement, resulting in the Apparel Export Promotion Council, Bangalore ( AEPC for short), forfeiting Rs. 1,29,486/- by order dated 23-10-2000 Annexure- C which when carried in appeal before the First Appellate Committee, was confirmed by order dated 28-6-2002 Annexure- F and dismissal of the second appeal by order dated 24-8-2004 Annexure- H of the Second Appellate Committee. Hence, this writ petition calling in question Annexure- H and for a declaration that the AEPC and the Appellate Committees have no jurisdiction to adjudicate upon the matter. 2. Petition is opposed by filing Statement of Objections dated 15-12-2004 of the 3rd respondent. 3. On b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 go waste due to speculative trading by unscrupulous elements and therefore, the policy envisages utilisation of the quota by 30th September of the relevant year and failure to do so, the exporter is required to surrender the quota and seek revalidation of unutilised quota allocated in the categories, in the manner and procedure as laid down in the policy. Revalidation of quota beyond 30th September and upto 31st December of the relevant year is in the form of a Bank guarantee or a fixed deposit receipt or demand Draft while the policy in operation till the year 2000, star exporters cover the amount of EMD by a letter of undertaking or post-dated cheques. The condition relating to forfeiture is that an exporter who exports not less than 90% of the export entitlement, its EMD shall be released in full. In case of utilisation upto 75% of fast moving items and upto 50% in case of slow moving items, EMD is forfeited in proportion to the shortfall of utilization. If an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forfeiture of Bank guarantee on failure to export garments upto 90% hut not less than 73%, and forfeiture in full if less than 75%. Petitioner having accepted the terms of forfeiture, it is argued, cannot be heard to contend that the policy in so far as it relates to forfeiture is either irrational or unreasonable. Learned Senior counsel farther contends that an identical contention over the validity of the policy, when advanced, in the case of Gokaldas Images Limited v. Union of India, a learned Single Judge of the High Court of Delhi, rejected the plea in the decision reported in 2006 (193) E.L.T. 264 (Del.) = 2007 (7) S.T.R. 347 (Del.). Learned Senior counsel, in addition, contends that the petitioner having not laid relevant material constituting substantial legal evidence of a claim of force majeure, the authorities rightly considered and rejected the said plea. Lastly it is contended that the petitioner having exported garments upto 85.42% of the export entitlement, the authorities were justified in directing forfeiture of the amounts from out of the bank guarantee, in proportion, to the extent of unfulfilled quota. 7. Sri Devadass, learned senior counsel for Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner s claim of force majeure? 10. Indisputably, the export entitlement quotas allotted was on the petitioner s application to permit it to export garments within the time stipulated, and furnished a bank guarantee, inter alia, covenanting that in case of failure to fulfil the export obligation, in its entirety, would be subject to forfeiture clause of the Policy . The petitioner consciously agreed to the terms of the forfeiture that if it exported garments beyond 75% upto 90% of the export entitlement, would be liable for proportionate forfeiture and if less then 75%, forfeiture would be in full, from out of the amount in the Bank guarantee. The consent of the petitioner to be subjected to the terms of the policy, relating to forfeiture in the event of failure to fulfil the export entitlement, in the circumstances cannot permit it to approbate and reprobate nor assume inconsistent positions. 11. The contention that the terms of forfeiture are irrational and unreasonable in the circumstances is beyond pale of consideration. I say so because, the entire policy of allotting quotas is with the purpose of augmenting foreign exchange, which is of vital importance for the country and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiate by the above factors. 5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay dawn new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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