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TMI Blog2008 (8) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... icy'), effected 88.57% overall export entitlement, resulting in the Apparel Export Promotion Council ('AEPC' for short), Bangalore, after a show cause notice forfeiting Rs. 4,23,569/-, by order dated 12-3-1996 Annexure-"D", which when carried in appeal, was confirmed by order dated 23-8-2000 Annexure-H", of the First Appellate Committee and the dismissal of the further appeal, by order dated 3-8-2004 Annexure-"K" of the Second Appellate Committee. Hence, this writ petition. 4. Petition is opposed by filing Statement of objections dated 1-10-2004 of the 3rd respondent and Statement of objections dated 28-10-2004 of Respondents 1 and 2. In the Statement of objections of Respondents 1 and 2, it is contended that export of textiles and clothing from India is based on bilateral agreements entered into between Government of India and Governments of developed countries under the aegis of the erstwhile Multi Fibre Arrangement (MFA) governing international textile trade from the year 1974. The Textile Importing countries are referred to as "Quota countries" who have placed restraints on import of specified textile categories "Quota items" within the annual levels prescribed in the bilatera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation 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 imposed for revalidation 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 exporter is aggrieved by any order of forfeiture, it could maintain an appeal to the First Appellate Committee and thereafter to a Second Appellate Committee. The Appellate Committees rejected the petitioner's plea of force-majeure in the absence of relevant material constituting substantial legal evidence of the fact that failure to fulfil the export obligation was due to acts beyond the control of the exporter. 5. The Statement of objections of the 3rd respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 75%. Petitioner having accepted the terms of revalidation, 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 further 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 88.57% 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. 8. Sri Devadass, learned Senior counsel for Respondents 1 and 2 contends that the petitioner having secured an allotment of a quota to export garments under the policy, without quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation 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? 11. Indisputably, the revalidation of the quota allotted to the petitioner was at the instance of the petitioner who filed an application to permit it to export garments for the balance of the quota within the time stipulated, and voluntarily furnished a bank guarantee, inter alia, covenanting that in case of failure to fulfill 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, after revalidation, it 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 fulfill the export entitlement, in the circumstances cannot be permitted to approbate and reprobate nor assume inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving 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 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 vitiated 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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