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TMI Blog2017 (4) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted in the software. Petition allowed - The PRC is directed to reconsider its order dated 13.10.2015 in the light of the observations made above - decided in favor of petitioner. - WP (C) 11198/2015 - - - Dated:- 3-4-2017 - MS. INDIRA BANERJEE MR. ANIL KUMAR CHAWLA JJ. Petitioner Through: Mr. S. Ganesh Sr. Advocate with Ms. Maneesha Dhir with Ms. Jayashree Shukla Dasgupta and Mr. Aseem Swaroop, Advocates. Respondents Through: Mr. Akshay Makhija, CGSC with Mr. Sumant Bhushan, Adv. for UOI. Mr. Manish Mohan, CGSC with Mr. Shivam Chanana and Ms. Manisha Saroha, Advs. for R2/BIFR. JUDGMENT INDIRA BANERJEE, J 1. In this writ petition the petitioner has challenged an order dated 13.10.2015 passed by the Policy Relaxation Committee, hereinafter referred to as PRC , constituted under the Foreign Trade Policy, rejecting the petitioner s application for procedural relaxation and concessions to enable the petitioner to get credit for exports already made by the petitioner against export obligations incurred by the petitioner on certain Advance Licenses issued to the petitioner. 2. The petitioner is engaged in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (C) No.8031/2015 in this Court. 9. By an order dated 10.09.2015, this Court set aside the order of the PRC dated 09.06.2015 with liberty to the petitioner to file a representation before the PRC. The respondents were directed to pass a reasoned order after giving the petitioner an opportunity of hearing. 10. Mr. Ganesh, learned Senior Advocate appearing on behalf of the petitioner submitted that extension orders were issued by the Joint DGFT, Kolkata in July 2010, after a delay of 1 years. The extension was with retrospective effect from January, 2009. The petitioner, therefore, in effect, got an extension of 3 years instead of full period of five years to which the petitioner was entitled under Clause 4.1.9 (A) of the FTP 2004-2009 as a matter of legal right. 11. The petitioner, therefore, applied to the PRC for an appropriate extension of export obligation period to make up for the lost extension period of 1 years. Mr. Ganesh argued that the petitioner should be granted period of five years with effect from July 2010 till July 2015 and all exports made by the petitioner upto July 2015 should be taken into account towards discharge of the petitioner s export obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in restrictions were introduced in paragraph 4.20.3 of the Handbook (2009-2014) by amendments on 13.10.2011. Mr. Ganesh argued that these restrictions had to be prospective and could apply only to licenses issued after 13.10.2011. The licenses in respect of which the petitioner has sought facility of clubbing relate to the period 1992-2002 and are therefore squarely covered by paragraph 4.20 of the Handbook of 2004-2009. The later amendments of 13.10.2011 do not apply to the petitioner at all. 16. By the impugned order dated 13.10.2015, PRC rejected the prayer of the petitioner on the ground that the petitioner had already been granted a five year extension of export obligation period as per the order of the BIFR. Mr. Ganesh argued that the PRC did not consider the contention of the petitioner that the extension orders had come after 1 years, the extension was therefore only of 3 years with effect from July 2010 and not full extension of five years. 17. The PRC granted waiver of the requirement of mentioning license details only in respect of deemed exports made to special economic zones and not in respect of actual exports made to foreign countries. Mr. Ganesh argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired Authorisations have been issued during Exim Policy period 1992-1997 1997-2002 i.e., 1st April 1992 to 31st March, 2002. However, clubbing of erstwhile Value Based Advance licneses shall not be allowed. 23. Mr. Makhija submitted that since the request of the petitioner was for clubbing of expired Advance Authorizations issued between 1989 and 1993, which was not permissible according to the applicable provisions of the Handbook of Procedures, the request was turned down. 24. Mr. Makhija submitted that during the course of arguments, the petitioner had admitted that pre 1992 licenses could not be clubbed with the post 1992 licenses. It was submitted that before the PRC there was no request to ignore the pre 1992 licenses and grant clubbing only for the post 1992 licenses. 25. Mr. Makhija argued that even if it is assumed that clubbing may have been permitted for Advance Authorizations between 01.04.1992 to 31.03.2002, the last date to avail this facility was till 31.03.2012 as per the Public Notice No.79 (RE1010)/2000-14, dated 13.10.2011. The petitioner did not avail of this facility and therefore clubbing could not be permitted. 26. Mr. Makhija submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cense. As per the prevalent procedure they were eligible for two extensions of six months for fulfilment of export obligations. Both these extensions were granted to the petitioner. 32. Mr. Makhija argued that as per the conditions attached to the license and provisions in the prevalent Handbook of Procedure 1992 to 1997, the petitioner was under obligation to submit documents evidencing fulfilment of export obligation and realization of remittances within two months from the date of expiry of export obligation. So effectively, the petitioner should have completed their export obligations within 30 months from the date of issue of each Authorization and submitted documents within two months thereafter, towards redemption of the cases, but they did not do so. Therefore, the petitioner was liable for penal action of violating the provisions of EXIM Policy under the Foreign Trade (Development and Regulation) Act, 1992. 33. Mr. Makhija submitted that the petitioner became sick in 2001 which was five years after the obligation period. Hence the plea of genuine sickness of the company could not be taken as a genuine reason for non-fulfilment of export obligations. 34. Mr. Makhij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner thus, in effect got extension of 3 years only. Appropriate extension of export obligation period was sought to make up for the lost 1 years, which PRC apparently did not appreciate. 39. There is also no specific denial of the change in alpha numeric numbering of import Licenses and change of software as a result of which the software did not accept the earlier licence numbers given to licences issued before 2009 in connection with shipping bills covering exports in relation to the licences. These exports were not taken into consideration for no fault of the petitioner. This is not in dispute. 40. It is also not in dispute that exports on free shipping bills have been considered towards exports against obligations under Advance Licences in case of other exporters though Advance Licence Numbers could not be uploaded. 41. In any case, paragraph 4.20 of the Handbook of Procedures provides for the clubbing of Licences, and this has been allowed in respect of M/s Titan Laboratories, M/s Zenith Birla India Ltd. and others. As rightly argued by Mr. Ganesh, subsequent restrictions in paragraph 4.20.3 introduced by amendment on 13.10.2011 have to be prospective and apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses. The prayer is not unreasonable. 48. May be, policy relaxation is not a matter of right, as argued by Mr. Makhija. At the same time relaxation cannot whimsically be denied if facts and circumstances warrant relaxation. 49. It is well settled that discretionary power cannot be exercised arbitrarily. If facts and circumstances exist which require exercise of discretion in a particular way, there is an obligation and / or duty to exercise discretion in that way. The proposition finds support from the judgment of the Supreme Court in Ex. Capt. Harish Uppal v. UOI Ors. reported in 2003 (2) SCC 45. 50. As observed above, there is no specific denial that in large number of other cases, discretion has been exercised. The instances have been given. Refusal to exercise the power in the case of the petitioner would be totally arbitrary, discriminatory and bad in law. 51. Mr. Ganesh submitted that there is no need or warrant for a remand because the petitioner had already submitted to the respondent the central excise ARI-I documents (duly endorsed by the Central Excise Authorities) and the export invoice (also endorsed by the Customs Authorities). Mr. Ganesh submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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