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TMI Blog2013 (10) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... (RE-98)/98-99, dated 28th May, 1998 was not applicable with retrospective effect especially for an export obligation for which the last shipment was stated to have been made on 14th September, 1995. Therefore the appellant cannot claim any benefit under the said circular. Notably, in any case, the said circular also stipulated that the export proceeds realized in any currency would be converted into USD and the term ‘any currency’ would refer to the foreign currency realized through exports, since the aim of the scheme was to promote foreign exchange earnings in fully convertible currency. Subsequent de-valuation of the rupee cannot come to the aid of the appellant - Decided against assessee. - LPA No. 582/2003 - - - Dated:- 10-10-2013 - S. Ravindra Bhat And Najmi Waziri,JJ. For the Appellant : Mr. J. P. Singh, Sr. Advocate with Mr. L.K.Giri, Mr. Sumeet and Ms. Ankita, Advocates For the Respondents : Nemo JUDGMENT Mr. Justice Najmi Waziri 1. In this appeal, the appellant has challenged the order of the learned Single Judge dated 9th May, 2003 in CWP No.6972/2001. 2. Vide the impugned judgment, the learned Single Judge had rejected the prayer of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t license, the applicant/appellant was required to furnish an indemnity-cum-surety bond. This was duly complied with. It has been duly undertaken by the appellant in the said bond that it would export the equivalent of Rs.28,07,83,760/-, which amount calculates to three times the CIF value of imported capital goods. The relevant portion of the said bond records as under: Whereas the Government has permitted the said importer to import Melting Extruder of Barmag type and other items as per detailed list attached, and has agreed to issue the import licence for the said melting Extruder of Barmag type and other items as per detailed list attached under the aforesaid notification of the Government of India, read with the Import and Export Policy 1990-93 (Vol. 1) and the Handbook of Procedures, 1990-93 (Vol.1) and has also granted licence No. P/CG/2127854 dated 18th March, 1991 for a value of Rs.7,58,94,400/- (DM 6,392,202) for the import of said Melting Extruder of Barmag type and other items as per detailed list attached on the terms and conditions specified therein, read with the terms and conditions specified in the aforesaid Notification and the Import Policy Procedures issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that: the export proceeds realized in any currency shall be converted, except in cases where the entire imports and the exports are made in one foreign currency, into US Dollar at the exchange rate prevailing on the date of issuance of EPCG license which has been endorsed on the reverse of the license with a view to ascertain whether export obligation has been fulfilled or not. This, the appellant submits, makes it abundantly clear that for the purpose of calculation of the quantum of export obligation, the exchange rate prevailing on the date of issuance of EPCG license has to be taken as the basis. The appellants represented to the respondent that they had fulfilled the export obligation and gave their calculations through letter dated 15th July, 1994 claiming that their export obligation came to US $87,301,80/- and further contended that the export obligation imposed upon them was in excess by US $28,70,279/-. To this, the respondent by letter dated 14th September, 1994 replied that: (i) the request for correction and export obligation had been duly considered and it had been verified that the export obligation had been correctly calculated at the exchange rate of Rs.100 = DM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58-ITC(PN)/1990-90 dated 16th May, 1991, which requires it to be the CIF value of the license at the rate of exchange on the date of issue of license. iii. The said export obligation was to be fulfilled in USD, as noted on the license. iv. Policy Circular No. 8 dated 28th May, 1998, provides that export proceeds realised in any currency shall be converted to USD. Consequently, the same cannot apply to proceeds realised in USD. v. Appellant is attempting to mislead the court by indicating the value of exports in INR value of foreign currencies at the rate on the date of export (instead of the rate on the date of the license) and taking advantage of devalued INR. vi. Even the procedure for debiting imports as per the Handbook of Procedure provides that the export obligation shall be discharged in freely convertible foreign currency. 10. This Court notices that the learned Single Judge had taken into consideration the contentions of the parties and in a detailed judgment has observed as under:- 9). I have considered the submissions of both the parties. At the outset, it may be highlighted that the export obligation in the licence dated 18th March, 1991, as amended on 3rd F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... static even for the purpose of making exports. Once obligation of the petitioner to earn specific amount of foreign exchange is fixed, it is required to make exports of US $ of that particular amount. For this purpose, the petitioner cannot reduce the obligation by converting the same at the exchange rate prevailing at the time of issuance of licences which would be negative of the concept of import and export. The petitioner has adopted a curious method to show the fulfilment of his export obligations as rightly pointed out by the respondents. It may be mentioned that even para 231 of the Handbook of Procedure which deals with procedure for debiting imports very categorically stipulates that export obligation are to be discharged in freely convertible currency. 10. The petitioner is only relying upon the first part of the para where it is stipulated that import licence has to indicate the value both in rupees and in foreign currency at the exchange rate prevailing on the date of issue of the licence. However, even if that is to be done, in the later part of the same para it is categorically mentioned that export obligation has to be discharged in freely convertible currency. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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