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TMI Blog2010 (5) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of the goods as per the Bills of Entry submitted before the respondent No. 3. B. Pending the hearing and final disposal of the present petition, Your Lordships be pleased to order the respondents to remove the seals of the factory premises of the petitioners forthwith and to pass the Bills of Entry and to allow the petitioners to start and continue their manufacturing activities and allow the clearance and export of the finish goods manufactured out of the consignments in question. C. Ad-interim ex-parte relief in terms of prayer (B) above may kindly be treated. D. Any other and further relief as the nature and circumstances of the case may require, also be granted." 2. Thereafter vide amendments made on various dates following additional prayers were made : "(a-1) that this Hon'ble Court be pleased to issued a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ order or direction under Article 226 of the Constitution of India, calling for the records and proceedings pertaining to the passing of the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the project report and a copy of the proposed order of the Russian buyer. 5. On 18-4-1986 a letter of approval was issued by Ministry of Commerce for setting up a new industrial unit in Kandla Free Trade Zone subject to the following three conditions : 1. Entire production shall be exported, of which at least 50% will be to G.C.A. countries. 2. Minimum value addition without inputs will be 47% in first year, 53% in second year, 62% in third year, 71% in fourth year and 81% in fifth year of production. If the value of both imported and indigenous outputs are taken into account, a minimum value addition would be 32% in first year going upto 52% in the 5th year. 3. Clearance should be obtained from the Gujarat Water and Pollution Control board. The petitioner was asked to confirm written acceptance of the conditions and in fact the petitioner did so vide communication dated 2-5-1986. 5. Before the petitioner was granted registration by respondent No. 2 authority, the petitioner was called upon to confirm as to whether the petitioner would be in a position to comply with the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention was that the authorities failed to consider the circumstances in which the petitioner was put by virtue of sudden fluctuation in the import rate making it impossible to achieve the limit specified in the condition and, therefore, the petitioner could not have been called upon to achieve what was not possible. Lastly, it was contended that the proceedings had been initiated even before the period of one year was over as stipulated in the condition and, therefore, also the respondent authorities could not have either levied the penalty or confirmed the demand in hands of the petitioner. In support of the submission made, attention was invited to Appendix 15 (Chapter XX) and Paragraph No. 4 thereof as appearing in the EXIM Policy at the relevant point of time as well as Customs Notification No. 77-Cus., dated 17-4-1980 to submit that the notification nowhere provided for value addition and in absence of such direct provision, any condition imposed in a letter of approval cannot be insisted upon. In support of the submission, reliance was placed on judgment in case of Choksi Tube Company Limited v. Union of India, 1998 (97) E.L.T. 404 (S.C.) to submit that in that case similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, and to fulfill, inter alia the conditions stipulated in this notification." The said condition stipulates that an importer agrees to execute a bond in the prescribed form and for such sum specified by the Development Commissioner so as to bind the importer to fulfill the export obligation and fulfill other conditions stipulated in the notification. Thus, on a plain reading it emerges that once an importer has executed a bond in the prescribed form for a prescribed sum he is under a legal obligation to fulfill the export obligation. When one talks of fulfillment of an export obligation it goes without saying that the same would also include the aspect of value addition in so far as the exports are concerned. In the facts of the present case it is an accepted position that the petitioner did execute such a bond. The petitioner was, therefore, duty bound to fulfill the export obligation, including achieving the stipulated limit of value addition. In the circumstances, it is not possible to state that the letter of approval has gone beyond either the policy document or the customs notification. 12. In so far as the submission that the petitioner was called upon to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot be converted into a principle of negative discrimination and assuming that some other person appears to have violated law that would not entitle the petitioner to violate the law. 15. In the circumstances, the petitioner cannot succeed on any of the grounds pleaded and urged at the time of hearing. In relation to the prayer clause 15(a-3), suffice it to state that respondent No. 3 authority has already recorded that it will be open to the petitioner to make a claim for duty drawback and, therefore, the said prayer cannot be granted. The petitioner has, in the first instance, to make an application in accordance with law and only after the petitioner is in a position to show that the petitioner is entitled to, the authority would be in a position to consider such a claim. 16. Hence, none of the prayers made in the petition, even after various amendments, can be granted. The petition is accordingly rejected. RULE discharged. There shall be no order as to costs. 17. At this stage, learned advocate for the petitioners seeks stay of operation of this judgment for a period of four weeks. Considering the facts on record and the fact that the orders impugned wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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