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TMI Blog2019 (5) TMI 1636X X X X Extracts X X X X X X X X Extracts X X X X ..... was clarified that if the imports are from registered sources, conditions governing normal advance licences are applicable. In these cases, it included validity period and normal export obligation period. The petitioner is correct that in the event, it is accepted that if the products are exported from a registered source, normal provisions with regard to the export obligation period would apply. However, the contention that the said period is thirty six months is incorrect. In terms of paragraph 4.22 of the Handbook of Procedures for the year 2009-2010 (Volume-I), the export obligation period for advance authorization issued with inputs as mentioned in Appendix 30A would be for the period as stipulated against each entry, therein - Appendix-30A of the said Handbook clearly specifies that the export obligation period for drugs (with specific export order and pre import condition) would be twelve months from the date of clearance of each import consignment by the Customs Authorities. In view of the above, even if it is accepted the petitioner had imported the drug in question from a registered source, the export obligation period applicable would be twelve months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali Noor and Ms. Shruti Dutt, Advocates. O R D E R VIBHU BAKHRU, J 1. The petitioner has filed the present petition, inter alia, impugning the decision of respondent no.3 (Policy Relaxation Committee hereafter PRC ) taken in its meeting held on 08.08.2017 in Case No.4. By the said decision, the PRC has rejected the petitioner s request for reconsidering its earlier decision rendered on 19.07.2016. The petitioner is, essentially, aggrieved by the decision of the PRC to not extend the export obligation period in respect of Advance Authorization bearing no. 0310696315 dated 28.05.2012. 2. The petitioner is a merchant exporter, inter alia, engaged in purchase and sale of pharmaceutical products. The petitioner states that it had entered into an agreement with a Russian Company for supply of a drug named Cycloserine USP, which is used to prevent/treat drug resistant Tuberculosis. It is stated that the said Russian Company intended to supply the said drugs to the Russian Government pursuant to a tender invited by the Russian Government. 3. The petitioner applied for an Advance Authorization for importing the bulk drugs for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7194918 29.08.13 25.500 Cycloserine Caps. US 250 mg. 3049086.75 7 5571138 17.10.14 85.680 Cycloserine Caps. US 250 mg. 12979443.49 8 5571144 17.10.14 1.275 Cycloserine Caps. US 250 mg. 191005.23 9 9943834 02.06.15 14.94 Cycloserine Caps. US 250 mg. 2336365.60 694.79 95680677.00 5. The petitioner claims that payments against all the aforesaid consignments have been realised. 6. On 02.09.2015, the petitioner sent a letter to the Licensing Authority requesting for issuance of the Export Obligation/Dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Authorization No. 0310696315 dt. 28.05.2012 was issued with conditions stipulated under PC-9 dated 30.06.2003, which allows 12 months period for EG fulfillment from import of each consignment. The imports were made on 13.06.2012 20.06.2012. Accordingly, initial obligation period was upto 31.12.2013 31.12.2013, respectively. The applicant has fulfilled 81.66% export obligation during the initial obligation period and remaining 17.60% thereafter. Taking all these facts into account, the Committee decided the following: I. Export obligation period be extended from 12 months to 18 months against import of each consignments i.e. upto 30.06.2014 31.06.2014 respectively. II. This is only for accounting and regularization of exports already effected. III. This is subject to a payment of composition fee @ 0.5% on FOB value of export made after initial obligation period. IV. RA shall check that 50% exports against each consignment were made within initial export obligation period. If not, composition fee will be charged @ 0.5% per month on unfulfilled FOB. V. The minimum value addition of 15% as prescribed under Para 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h matters were required to be considered to meet the ends of justice. She submitted that that since the petitioner had discharged its export obligation, the PRC s decision to ignore the exports made beyond the export obligation period was arbitrary and unreasonable. 15. I have heard the learned counsel for the parties. 16. The contention that the petitioner had imported the drug in question from a registered source and, therefore, the export obligation period was thirty six months and not twelve months, cannot be accepted. First of all, no such contention has been canvassed before the Licensing Authority or before the PRC and no such contention has been raised by the petitioner in the writ petition as well. This Court is, thus, of the view that this contention is an afterthought and must be rejected outrightly. The petitioner has all along proceeded on the basis that the export obligation was twelve months from the date of import and had approached the PRC for extension of the said period. Thus, it would not be open for the petitioner to now contend that the export obligation period was thirty six months. 17. Secondly, even if it is accepted that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Appendix 30A shall be as per the period stipulated against each entry therein. Facility of extension of EOP shall not be allowed in case of Advance Authorisation issued for these inputs. RA shall make an endorsement in Advance Authorisation to this effect. 19. Appendix-30A of the said Handbook clearly specifies that the export obligation period for drugs (with specific export order and pre import condition) would be twelve months from the date of clearance of each import consignment by the Customs Authorities. In view of the above, even if it is accepted the petitioner had imported the drug in question from a registered source, the export obligation period applicable would be twelve months from the date of the consignments imported by the petitioner. 20. In the present case, the import against the advance authorization was made against two Bills of Entry dated 13.06.2012 and 20.06.2012. Thus, the export obligation period expired on 12.06.2013 and 19.06.2013 respectively. During this period, the petitioner had exported five consignments, last of which was exported on 15.02.2013. The PRC had acceded to the petitioner s request and had extended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fixation/modification of product norms under all Schemes Norms Committee (ii) Nexus with Capital Goods (CG) and benefits under EPCG Schemes EPCG Committee (iii) All other issues Policy Relaxation Committee (PRC) 25. It is apparent from the above, that the DGFT has a wide discretion to grant any relief or relaxation as is clear from the use of the word as he may deem fit . However, such relief/relaxation can be granted in cases of genuine hardships and adverse impact on trade . Clearly, normal risks and vagaries of commerce would not qualify as genuine hardship. The applicant must establish a compelling case for such a relaxation. An applicant taking an extended risk of importing against Advance Authorization without a confirmed export order or an assured export market, would find it difficult to justify his request for relaxation of policy under paragraph 2.5 of the FTP. In order to invoke the powers of relaxation, the applicant must establish that his cause of hard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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