9911796707
TMI Blog2020 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 - the petition is required to be allowed only on this ground, without expressing any opinion on merits, by quashing and setting aside the decision taken by the Board of Approval in the 89th Meeting held on 22nd April 2019 qua the petitioners with a direction to reconsider the case of the petitioners after giving reasonable opportunity of hearing so as to adhere to the principles of natural justice. Matter remanded back to the Board of Approval to reconsider the application filed by the petitioners for renewal / extension of letter of approval, which was renewed on 2nd April 2014 and extended up to 2nd April 2019, after giving adequate opportunity of hearing to the petitioners - appeal allowed by way of remand. - R/Special Civil Application No. 13735 of 2019 - - - Dated:- 30-1-2020 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Amal Paresh Dave And Mr Paresh M Dave for the Petitioner Mr Devang Vyas for the Respondent JUDGMENT PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA 1. Rule, returnable forthwith. Mr. Devang Vyas, the learned Assistant Solicitor General waives service of Notice of Rule for and on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.204 to 207 of Sector No. (IV) of the Kandla Free Trade Zone, which was permitted by letter of allotment dated 05.05.1995 issued by the Development Commissioner. 3.3. It appears that thereafter, the Special Economic Zones Act, 2005 (for short, the SEZ Act, 2005 ) came into effect from 12.09.2006 and Kandla Free Trade Zone was not invited as Special Economic Zone (SEZ). The Letter of Approval issued in favour of the petitioners was renewed by renewal / extension letter dated 26.06.2009 by the Respondent No.2- Development Commissioner of Kandla Special Economic Zone. The respondent No.2 granted extension under the letter dated 26.06.2009 to the petitioners upto 31st October 2010 and thereafter, renewal from November 2010 was not allowed and the operation of the petitioners was discontinued from November 2010 till April 2014. The renewal / extension of the letter of approval was allowed by the office of the Development Commissioner by letter of approval dated 28.04.2014 upto 2nd April 2016. 3.4. It appears that thereafter, renewal / extension letter dated 23.08.2016 was issued by the office of the Development Commissioner extending the validity of the letter of approval for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006.) 3.7. The aforesaid decision of the Board of Approval was communicated to the petitioners by the office of the Development Commissioner by letter dated 27th May 2019. 3.8. The petitioners therefore, being aggrieved by the aforesaid rejection by Board of Approval has preferred this petition with the aforesaid prayers. 4. Mr. Paresh M. Dave, the learned advocate appearing on behalf of the petitioners submitted that the Board of Approval has decided to reject the application of the petitioners without giving any opportunity of hearing and therefore, there is a breach of principles of natural justice. 4.1. It was submitted that the Unit of the petitioners was operating in Free Trade Zone and Special Economic Zone for more than two decades and cannot be ordered to be shut down on the basis that in case of violation of Customs Act in the year 2005 was against the petitioners and show cause notice for negative Net Foreign Exchange Earnings was issued against the petitioners for the period from 2006 to 2011. 4.2. It was pointed out by the learned advocate for the petitioners that such proceedings were sub judice and the request of the petitioners and application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has power to decide the extension / renewal. Section 48 of the SEZ Act 2005provides protection of action taken in good faith to the effect that no suit, prosecution or other legal proceedings shall lie against inter alia the Board of Approval for anything done or intended to be done in good faith under this Act. 4.7. Learned advocate for the respondents relied upon the averments made in the affidavit-in-reply filed on behalf of the respondents and submitted that the Board of Approval in its 89th Meeting held on April, 22, 2019 has noted that there was an instance of violation of Customs Act, 1992, in the year 2002 by the petitioners Unit for illegal importation and DTA clearance of the goods restricted for import and allowed to be sold in DTA, and goods were also seized lying in the premises of the petitioners, which was subsequently released as per the order dated September 30, 2010 passed by the CESTAT s on condition to clear the goods only to the CPCB registered recyclers. Moreover, the show cause notice for mis-declaration for providing false information in annual performance report was also issued. It was also pointed out that the petitioners Unit continuously failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the positive Net Foreign Exchange Earnings would be relevant factor for rejecting the application for renewal filed by the petitioners while exercising powers under Rule 18(4) of the SEZ Rules, 2006. 6. It would be necessary to refer to the various provisions of the SEZ Act, 2005 and SEZ Rules, 2006. 6.1. Sections 8 and 16 of the SEZ Act, 2005 read thus : Section 8 Constitution of Board of Approval: 8. (1) The Central Government shall, within fifteen days of the commencement of this Act, by notification, constitute, for the purposes of this Act, a Board to be called the Board of Approval. (2) The Board shall consist of- (a) an officer not below the rank of an Additional Secretary to the Government of India in the Ministry or Department of the Central Government dealing with Commerce - Chairperson, ex officio; (b) two officers, not below the rank of a Joint Secretary to the Government of India, to be nominated by the Central Government to represent the Ministry or Department of the Central Govt. dealing with revenue Members, ex officio; (c) one officer not below the rank of Joint Secretary to the Government of India to be nominated by the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed by the Board. (5) The Board shall meet at such times and places as may be appointed by it and shall have the power to regulate its own procedure. (6) One third of the total Members of the Board shall form a quorum, and all the acts of the Board shall be decided by a general consensus of the Members present. (7) No act or proceeding of the Board shall be called in question on the ground merely of existence of any vacancy in, or any defect in the constitution of, the Board. (8) All orders and decisions of the Board and all other instruments issued by it shall be authenticated by the signature of the Member-Secretary, or any other Member as may be authorised by the Board in this behalf. Section 16, Cancellation of letter of approval to entrepreneur : 16. (1) The Approval Committee may, at any time, if it has any reason or cause to believe that the entrepreneur has persistently contravened any of the terms and conditions or its obligations subject to which the letter of approval was granted to the entrepreneur, cancel the letter of approval: Provided that no such letter of approval shall be cancelled unless the entrepreneur has been aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in dispute that no opportunity of being heard was afforded to the petitioners before taking decision in the 89th Meeting of the Board of Approval held on 22nd April 2019. We are, therefore, of the view that the decision on the renewal / extension of the letter of approval, which has a consequential effect of cancelling letter of approval, is in breach of the Section 16 of the SEZ Act, 2005. 9. In such circumstances, the petition is required to be allowed only on this ground, without expressing any opinion on merits, by quashing and setting aside the decision taken by the Board of Approval in the 89th Meeting held on 22nd April 2019 qua the petitioners with a direction to reconsider the case of the petitioners after giving reasonable opportunity of hearing so as to adhere to the principles of natural justice. 10. In that view of the matter, the petition succeeds and is accordingly allowed. The impugned decision of the Board of Approval taken in the 89th Meeting held on 22nd April 2019 qua the petitioners is quashed and set aside and we remand the matter back to the Board of Approval to reconsider the application filed by the petitioners for renewal / extension of lette ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
