9911796707
TMI Blog2010 (5) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... Oral)]. The petitioner, a Private Limited Company, states that it is a 100% export oriented unit manufacturing flat knitting machines. The petition when originally filed was limited to the following prayers : 15. In the premises aforesaid, the petitioners, therefore, most humbly and respectfully pray that : A. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to forthwith open the seal of the factory premises of the petitioners and to allow the petitioners to start and continue their manufacturing activities without let or hindrance and allow export of the goods manufactured and direct the respondents to allow the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter manufacture, the said prayers do not survive and no orders are required to be made. 4. It is the say of the petitioner that on 21-1-1986 the petitioner received a proposed order for 12,000 knitting machines from a Russian buyer at specified price and delivery schedule. Accordingly, as per the say of the petitioner, the petitioner placed order for importing certain machines/spare-parts with a Japanese concern. On 28-1-1986 the petitioner made an application to respondent No. 2 authority, the Development Commissioner, Kandla Free Trade Zone, seeking allotment of a shed and registration 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a condition had been incorporated in the letter of approval, the petitioner could not be bound by the same as while granting approval the authority cannot impose a condition contrary to the policy. Alternatively, it was submitted that the policy cannot be treated as a statute and in absence of any statutory provision providing for such a contingency no such condition could be imposed upon the petitioner, and hence, the petitioner was not legally obliged to fulfill such a condition. A further alternative contention 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 X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion criterion. Therefore, submission that the policy document does not oblige an importer/exporter to fulfill the condition of value addition does not merit acceptance. 11. In so far as Customs Notification No. 77-Cus. dated 17-4-1980 is concerned, Condition No. 4 which appears immediately after preamble reads as under : (4) the importer agrees to execute a bond in such form and for such sum as has been prescribed by the Development Commissioner of the Zone binding himself to fulfill the export obligations, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated action after 17-6-1987 the result would not have changed and, therefore, merely because the authorities have taken action within the period of one year no prejudice has been caused to the petitioner in the facts of the case, and in fact no prejudice is shown to have been actually caused to the petitioner. 14. In so far as the plea based on the Apex Court decision in the case of Choksi Tube Company Limited (supra) is concerned, suffice it to state that the principle of unjust discrimination 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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