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TMI Blog2019 (8) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... o years, then also when the extension for two years was granted vide order dated 2/1/2017, the extension would have expired on 2/1/2019. Today's date is 1/8/2019. Therefore, there is no substance in the submissions and prayer prayed for by the petitioner in the present petition. Further, the petitioner firm has not availed the option of approaching the Grievance Redressal Committee under 2.49 and 9.9 of FTP 2006-07. Under the circumstances, there is no merit in the present petition. Petition dismissed. - R/SPECIAL CIVIL APPLICATION NO. 19603 of 2018 - - - Dated:- 1-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR MD NANAVATI, SENIOR ADVOCATE with MR TARAK DAMANI (6089) For The Respondent (s) : MR NIKUNT K RAVAL(5558), NOTICE SERVED BY DS(5) AND SERVED BY RPAD (N)(6) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs :- 9. In view of what is stated hereinabove, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de having its office at Ahmedabad. The respondent No.3 is the Foreign Trade Development Officer under the Directorate General of Foreign Trade, New Delhi. 2.02. The petitioners are engaged in the business of printing for the past seventy years. During the course of their business, in the year 2007, the petitioners applied and were granted an EPCG Authorization No. 0830001976/3/11/00 dated 28.03.2007 by the office of respondent No. 2. 2.03. Pursuant to the said EPCG Authorization, the petitioners imported Capital Goods such as Mitsubishi sheetfed Offset Printing Press, Server Software, Kodak Series Trendsetter III 800 Quantum S speed with DCK and Hologram Machine UVY-104, availing concession of Customs Duty originally totaling to an amount of ₹ 1,85,18,856/- (Rupees One Crore Eighty Five Lakhs Eighteen Thousand Eight Hundred and Fifty Six Only). Thereafter, by an amendment sheet No. 2 3 issued from file No. 08/36/160/00165/AM08 dated 03.09.2007, based on the final duty amounts, the Export Obligation was determined as ₹ 14,60,14,576/- and the total duty saved has been changed from ₹ 1,85,18,856/- to ₹ 1,82,51,822/- (Rupees One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of DGFT at Delhi and upon considering the case of the petitioners on 26.09.2016, the PRC recommended to the DG that relaxation be granted to the petitioners in terms of Para 2.58 of the FTP 2015-20. 2.08. On 04.10.2016, copy of minutes of the said meeting were received by the petitioners and immediately thereafter on 06.10.2016 a letter was submitted to the of ECE respondent No.2, seeking extension, referring to the minutes as above. The petitioners thereafter on or around 09.11.2016, received a letter dated 27.10.2016 from the office of the respondent No. 3 whereby the petitioners herein was informed that in the application made by the petitioners there has been deficiency whereby composite fee of 2% for each year was required to be paid on the total duty save and thereby the petitioners was required to pay 4% instead of 2% which was originally paid. Pursuant thereto, the petitioner herein on 11.11.2016 paid an amount of ₹ 3,77,000/-. However, around middle of December, petitioners were instructed to pay another 4% towards late application charges whereby petitioners were asked to pay an amount of ₹ 7,41,985/- towards the fees for extension of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not follow under the public notice dated 25.10.2017 and the said was beyond his power and the case of the petitioners can only be considered by the respondent no. 3. In view thereof, the petitioners on 26.12.2017 sent a letter and on 08.01.2018 sent an e-mail with respect to the same to the office of the respondent No. 3. 2.12. On 08.01.2018, the petitioners had personal meeting with the Chairman, EPCG Committee and had discussed the issues. In follow-up to the personal meeting, the petitioners on 19.02.2018. sent a letter to the respondent no. 2 requesting them to consider the case of the petitioners and grant extension for the second block of Export Obligation for utilization of EPCG Authorization. On 28.08.2018, after writing several letters and making personal visits to the office of respondent No.2 and 3, the petitioners received a letter dated 19.08.2018, from the Foreign Trade Development Officer, Office of the respondent No.2 conveying that the request of the petitioners was rejected and that they have to pay 50% of the Customs Duty saved for any extension of the Export Obligation Period. 2.13. On 16.08.2018, the Senior Intelligence Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, I crave leave to file a detailed affidavit as and when necessary and required by this Hon'ble Court. 4. At the outset, it is submitted that the present petition is misconceived and baseless, devoid of any merits, and therefore, the same may kindly be rejected. 5. I submit that I am filing this affidavit-in-reply only for the limited purpose of opposing the admission of this petition and grant of any relief as prayed for in the petition. However, I crave leave to file detailed affidavit, if and when it is necessary. 6. I submit that no right, much less any fundamental rights of the petitioner is violated and, therefore, the present petition under Article 226 and 227 of the Constitution of India is not maintainable. 7. With respect to averments made in para-l and 2 of the petition, I state that the same are matter of record and, therefore, I do not. wish to offer any comment at this stage. However, I reserve my right to file additional affidavit as and when required. 8. With respect to the averments made in para 3.1 to 3.6 of the petition, the same are factual in nature and hence n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, more particularly since such exemption from payment of customs duty cannot be claimed as a matter of right but is in fact a special waiver granted to the Petitioner. 10. With respect to the averments made in para 3.14 of the petition, it is submitted that block expiry occurred on 17.03.2013, at which time the petitioner had not fulfilled export obligation. The petitioner had to regularize on or before 30.06.2013, which was not done by them as per para 5.8.3 of HBP. The petitioner firm approached EPCG committee for extension only in June 2016. The petitioner firm was given First Block Extension and total EOP extension for 2 years upto 27.03.2015 and 27.03.2017 respectively. This was given on 02.01.2017 by EPCG Committee Meeting no. 06/26.09.2016. The EOP extension was given based on petitioner f1rm s correspondence dated 07.10.2016, 21.11.2016, 21.12.2016, 18.01.2017. The amendment for EOP extension was issued on 25.01.2017. 11. With respect to the averments made in para 3.15 of the petition, it is submitted that the petitioner firm approached the office of respondent No. 2 only. on 07.10.2016. Further, the EOP extension could be granted only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated 14.07.2017 addressed to DGFT Headquarters for second extension in EOP for three years the petitioner vide letter dated 04.12.2017 was advised to approach concerned RA for extension in EOP in terms of Public Notice No. 36/2015-20 dated 25.10.2017. The Public Notice No.36/2015-20 dated 25.10.2017 was issued to allow RAs to consider onetime relaxation for condonation of delay in submission of request for obtaining extension in Export Obligation period under EPCG. Earlier, the RAs were not able to consider requests for extension in Export Obligation Period (EOP) which are received beyond the prescribed time period. This provision did not grant powers to RA to grant extension in EOP beyond the prescribed period in Para 5.11(b) of HBP 2004-09. Therefore, request of the petitioner dated 09.12.2017 for second extension in EOP for two year from the date of endorsement was hot considered by RA as there is no provision in FTP. The firm had an opportunity of further extension of two years on payment of 50% customs duty on unfulfilled E0. 17. With respect to the averments made in para 3.23 to 3.27 of the petition, the same are factual in nature and hence not respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a manner that the petitioners would have 2 years extended time to complete export obligation. It is contended that so as to complete the export obligation under the license, two years extension may be granted from today. 6.00. Mr.Nikunt Raval, learned counsel appearing for the respondents have reiterated what is contended in the reply filed by the respondent No.2. He has contended that no error has been committed by the respondent authority in granting extension for 2 years from 28.3.2015. He contended that the respondent authority has power to grnt extension and the authority has granted such extension, however, the extension cannot be granted from the date of the extension order. It is contended that assuming for the sake of arguments without admitting that such extension can be granted, since the extension order has been passed on 2/1/2017, even such extension would have expired way back on 2/1/2019. Therefore, even otherwise also such prayer cannot be granted. He contended that the petitioners alternative remedy. He contended that considering the overall facts and circumstances of the case, the petition may be dismissed. 7.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of minutes of the said meeting were received by the petitioners and thereafter on 06.10.2016 a letter was submitted to the of ECE respondent No.2, seeking extension. As per the petitioners, the petitioners thereafter on or around 09.11.2016, received a letter dated 27.10.2016 from the office of the respondent no. 3 whereby the petitioners herein were informed that in the application made by the petitioners there has been deficiency whereby composite fee of 2% for each year was required to be paid on the total duty save and thereby the petitioners was required to pay 4% instead of 2% which was originally paid. Pursuant thereto, the petitioner herein on 11.11.2016 paid an amount of ₹ 3,77,000/-. However, the petitioners paid another 4% i.e. ₹ 7,41,985/- on 16.12.2016 towards the fees for extension of export obligation period by 2 years. 7.02. Around 12/13th January, 2017, the petitioners received a license amendment sheet dated 02.01.2017 issued by the respondent No.2 extending the Export Obligation Period of two years from 27.03.2015 upto 27.03.2017. Thereafter the petitioners made representations dated 13.05.2017, 11.07.2017, 14.07.2017 and 30.08.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.06. The EPCG Authorization license came to be granted in favour of the petitioner vide order dated 28.3.2007. The said license was for a period of eight years i.e. 27.3.2015. As per the terms of the agreement, the petitioners were required to export eight times duty saved on import of the capital goods within a period of eight years out of which the petitioners were required to fulfill 50% of the EO within a period of six years i.e. 27/3/2013 and the remaining 50% was to be achieved in next two years i.e. upto 27.3.2015. However, the petitioners could not fullfill full the 50% export obligation before 27/3/2013. As per the 5.8.3 of the Export Policy Handbook, Where export obligation of any particular block of years is not fulfilled in terms of the above propositions, except in such cases where the export obligation prescribed for a particular block of year is extended by the competent, . authority, such Authorisation holder shall, within 3 months from the expiry of the block of years, pay duties of customs plus 15% interest of an amount equal to that proportion of the duty leviable on the goods which bears the same proportion as the unfulfilled portion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of two years on payment of 50% customs duty on unfulfilled EO. 7.07. In overall view of the matter, it is clear that the petitioner neither fulfilled the export obligations nor applied for extension in time even for the First Block and even the application for second obligation has also been rejected. Therefore, the prayer of the petitioner to grant the extension for a period of two years cannot be accepted. The respondent authority has power to grant extension for two years, which the respondent authority has granted and such extension has been granted by the respondent authority from the date of expiry of original export obligation period and not from the date of approval by the DGFT. Even for the sake of arguments it is presumed that such extension can be granted for a period of two years, then also when the extension for two years was granted vide order dated 2/1/2017, the extension would have expired on 2/1/2019. Today's date is 1/8/2019. Therefore, there is no substance in the submissions and prayer prayed for by the petitioner in the present petition. Furthermore, the petitioner firm has not availed the option of approaching the Grievan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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