9911796707
TMI Blog2014 (9) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... the said contention of the appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant - to enable the appellant to succeed on the said plea, it was incumbent upon the appellant to establish that the shortfall was only in quota items of US 338 and not in other quota of different countries code but which the appellant had failed to do and thus the said plea could not be believed. If the non-fulfilment of the export quota allocated to the appellant was on account of any ban or embargo put on exports, the appellant ought to have surrendered the unfulfilled quota. The appellant admittedly did not do so and now cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Apparel Export Promotion Council (AEPC) imposing penalty of ₹ 11,14,424/- on the appellant for non-performance/non-compliance of Past Performance Entitlement quota applied for and allocated to the appellant by the respondent No. 2 AEPC for the year 2004. 4. The appeal came up first before this Court on 16th March, 2010 when the same was admitted for hearing and it was directed that the Bank Guarantee furnished by the appellant will be kept alive till the disposal of the appeal, if not already encashed. The appeal was on 10th May, 2013 dismissed in default of appearance of the appellant but upon the appellant filing an application, restored vide order dated 5th July, 2013. The appellant has filed CM No. 16113/2014 for permission t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrovert so, has based his argument on the additional document for filing whereof permission is sought. It is contended that the respondent No. 2 AEPC in the said counter affidavit in a proceeding in the High Court of Karnataka has taken a stand that owing to sudden increase in the demand in the second half of the year 2004, 100% of the quota allocated had been achieved as on 2nd November, 2004 and owing whereto the respondent No. 2 AEPC by Circular dated 27th October, 2004 had stopped export of garments in the category 340/640 to the United States (US). It is argued that the respondent No. 2 AEPC having so admitted in another legal proceeding that it had stopped the exports, cannot be allowed to impose penalty on the appellant for non-ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant. The learned Single Judge also, in the impugned judgment dealing with the said contention of the appellant, has held that the Past Performance Entitlement export quota allocated to the appellant was not only under the category of US 338 but in other categories also; that the appellant did not produce any document before the adjudicatory authority to show that it was unable to export owing to any such embargo; that the documents submitted before the First Appellate Committee also showed that the quota allocated to the appellant was for other countries also; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed to such entitlement and the requirement is to fulfil the export obligations by 30th of September of the year concerned and if the exporter fails to fulfil the export obligations, he is required to surrender the entitlement so that the same can be made available to other exporters, who may utilise it for the remaining period of the calendar year up to 31st of December. A copy of the order dated 9th February, 2009 of the Division Bench of this Court in LPA No. 1120/2006 preferred thereagainst is handed over to show that the view of the learned Single Judge stands affirmed by the Division Bench. 14. The counsel for the respondent No. 2 AEPC has also handed over in the Court a copy of the judgment dated 18th November, 2013 of a learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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