9911796707
TMI Blog2019 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... cededly, the petitioner had not discharged its export obligations as required - the decision of DGFT to pass an order under Rule 7.1(k) of the Foreign Trade (Regulation) Rules, 1993 cannot be faulted. Thus, no interference with the impugned order dated 14.10.2014 is warranted. Petition dismissed. - W.P.(C) 7806/2014 & CM No. 18331/2014 - - - Dated:- 22-4-2019 - MR VIBHU BAKHRU J. Advocates who appeared in this case: For the Petitioner: Mr. Sandeep Sethi, Senior Advocate with Ms. Suruchi Aggarwal, Advocate. For the Respondents: Mr. Kirtiman Singh, CGSC JUDGMENT VIBHU BAKHRU, J 1. The petitioner has filed the present petition, inter alia, impugning an order dated 14.10.2014 passed by respondent no.3 (Assistant Director General of Foreign Trade) under Rule 7.1(k) of Foreign Trade (Regulation) Rules, 1993 declaring the petitioner to be a defaulter and placing the petitioner under the Denied Entry List . The import of the said order is that all pending / future applications filed by the petitioner for benefits / authorizations from the office of the Director General of Foreign Trade (DGFT) under the Foreign Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order dated 14.10.2014 on the ground that it has been passed on the basis that no documents were available on record. The petitioner s claim that the same is palpably erroneous since all relevant documents had been produced by the petitioner and were otherwise on the record of the respondents (DGFT). 5. Briefly stated, the aforementioned controversy arises in the following context:- 5.1 The petitioner is a public company and is, inter alia, engaged in the business of manufacturing and exporting polyester Film (PET Film) and Bi-axially and Polypropylene Film (BOPET Film). The petitioner claims to be one of the leading exporters of PET Film/BOPP and has also been awarded as a Trading House status. Respondent nos.1 to 4 are officials from the Office of Director General of Foreign Trade (hereafter collectively and severally referred to as DGFT ). During the course of the business, the petitioner had applied for advance authorizations. The controversy relates to only advance authorizations (No. 0510096846 dated 22.07.2003; advance authorization No. 0510136637 dated 27.08.2004; and advance authorization No. 0510266545 dated 21.06.2010). 5.2 The lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd redemption of all the aforesaid Advance authorisations (dated 22.07.2003, 22.08.2004 and 21.06.2010), and provided requisite documents for the same. The Policy Relaxation Committee (PRC), in its meeting dated 01.11.2011, denied the said request by noting that the gap between the above authorizations is substantial. The said decision was communicated to the petitioner by the impugned order dated 25.11.2011. 5.7 In the meanwhile, a public notice dated 13.10.2011 (Public Notice no. 79 of 2011) was issued amending the Handbook of Procedures (Volume-1) (HoP v1 ) with effect from date. 5.8 Thereafter, the petitioner submitted a representation dated 20.12.2011 stating that the amendment in the provision of clubbing, that is, paragraph 4.20 of the HoPv1 was introduced by a public notice on 13.10.2011 and thus, it was not applicable to the applications for clubbing made before the date of the said public notice. 5.9 The petitioner s application was again rejected by the DGFT by a letter dated 01.10.2012, stating that Justification and reasoning cited by the applicant are not convincing to the committee hence rejected the same reiterating the earlier decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advance license dated 21.06.2010 and without importing any product. If the excess export of polyester film under the annual advance license dated 22.07.2003 and the export under the annual advance license dated 21.06.2010 are clubbed, the petitioner would have made good the deficit in export obligation in respect of annual advance license dated 27.08.2004. The Tabular statement as annexed with the petition is set out below:- Export details in terms of Quantities and values against all three Annual Advance Authorizations Annual Advance Authorization No. Date Export Product Qty to be exported w.r.t. imports made (MT) Qty actually exported (MT) FOB Value of exports actually made (INR) 0510096846 DATED 22.07.2003 POLYSTER FILM 14,775.00 15,618.00 1,420,485,253.00 0510136637 dated 27.08.2004 POLYSTER FILM 21,000.00 15,972.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the HoPv1, which clearly provides that facility of clubbing would be available for redemption/ regularization of cases and not to further import or export. However, paragraph 4.20 must be read in conjunction with paragraph 4.20.3 and 4.20.4 of the HoPv1. It is expressly provided under paragraph 4.20.3 that where the shortfall in fulfillment of export obligation is sought to be clubbed with an advance authorization which is valid for import, the applicant may not pay the composition fee for the period of extension as per paragraph 4.22 of the HoP v1 . Paragraph 4.22 and sub-paragraph therein contained provisions for extension of export obligation in certain cases. In the present case, the export obligation period under an annual advance license dated 21.06.2010 had already expired. There is some controversy whether the said period was 18 months as contended on behalf of DGFT or 24 months as claimed by the petitioner. However, there is no dispute that the said period had expired. It is also not disputed that the maximum period, for which extension could have been granted under paragraph 4.22 of the HoP v1 , has also expired. Mr Kirtiman Singh had contended that under the HoP v1 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.3 of the HoP v1 had been amended by a public notice no. 79 dated 13.10.2011, however, the same was not applicable as the petitioner s application had been made prior to the date of the public notice. 13. It is relevant to state that by the aforementioned public notice No. 79 (RE-2010)/2009-14 dated 13.10.2011, paragraph 4.20 of the HoP v1 was amended by the DGFT. Sub-paragraph 4.20.3 of the HoP v1 , as amended by the aforesaid public notice, reads as under:- 4.20.3 Only such Advance Authorisations shall be clubbed which have been issued within 36 months from the date of issue of the earliest Authorisation that is sought to be clubbed, whether such Authorisations are valid or not. 14. Mr Sethi had earnestly contended that prior to such amendment, there was no restriction regarding clubbing of advance authorizations and an advance authorization issued beyond 36 months could also be clubbed with the earlier authorization. The said contention is unmerited, as it fails to consider the restriction imposed under paragraph 4.20.4 of the HoP v1 as applicable prior to the amendment made in terms of the public notice dated 13.10.2011. Although, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly, unmerited. The observations made by the PRC on 30.04.2013 must be read in the proper context. As is clear from the opening sentence, the PRC had reiterated its decision taken at the meeting held on 01.11.2011, the observation that no relief could be granted to the petitioner for authorizations issued in 2003-04. The further observations made by PRC only clarify that the petitioner s case had been considered as per the prevalent provision as existing prior to the issuance of the Public Notice dated 13.10.2011. The said observations cannot by any stretch be interpreted to mean that the PRC had considered the petitioner s request on the basis of paragraph 4.20 of the HoP v1 as amended by the Public Notice dated 13.10.2011. In view of the above, this Court finds no infirmity with the decision of the PRC in rejecting the petitioner s application for clubbing of advance licenses. 19. Mr Sethi had further contended that the observation that the licenses could not be clubbed after a substantial gap was erroneous, as DGFT had in the past clubbed licenses where the time period between the issue of the said license exceeded to 36 months. The petitioner had affirmed that its adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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