9911796707
TMI Blog2020 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... (B) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any other appropriate writ, order or direction thereby directing the Board of Approval and/or the Approval Committee to allow the Petitioner's application dated 28.3.2019 (Annexure-"I") to renew and extend the period of operation of the Petitioner's KASEZ Unit by extending and renewing LOA dated 23.8.2016 for a period of five years in accordance with the SEZ Act and the SEZ Rules; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay decision of the Board of Approval recorded at para 89, 14(i) of the Minutes of its 89th meeting with a direction to the Development Commissioner (the 2nd Respondent herein) to allow the Petitioner to continue SEZ business operations in the Unit located at the address shown in the cause title of the petition; (D) An ex-parte ad-interim relief in terms of prayer 14(C)above may kindly be granted; (E) Your Lordships may kindly be pleased to pass any other and further order/s and/or relief/s in the interest of justice; 3. The petitioner No.1 is a partnership firm and has filed this petition through its partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for extension / renewal of the letter of approval in terms of Rule 18(4)(d) of the Special Economic Zones Rules, 2006 (for short, "SEZ Rules, 2006"). The Board of Approval recorded following reasons for rejecting the application of the petitioner for renewal / extension of letter of approval for next 5 years as under :- "89.14 Proposal of the unit for renewal of LoA for next five years. 89.14(i) Proposal of M/s Sameer Industries for renewal of LOA for next five years in terms of Rule 18(4) of SEZ Rules 2006. BoA noted that there was an instance of violation of Customs Act, 1962 in the year 2005 by the unit wherein the jurisdictional Kandla Customs Authorities booked a case for illegal importation and DTA clearance of "druid" grade, copper scrap and jelly filled copper cables restricted for import and allowed to be sold in DTA only to registered CPCB recycles and also seized the goods lying in the premises and that only after payment of all the duties and penalties and redemption line as per the CESTAT Order, the seizure was vacated and the goods were ordered to be cleared only to CPCB registered recyclers. Further, it was noted that unit was issued SCN for mis-declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended upto the year 2019, and therefore, the basis on which the Board of Approval has rejected the application for renewal / extension is non-existent. 4.4. With regard to the reasons for rejection given by the Board of Approval for not achieving positive Net Foreign Exchange Earning, it was pointed out that the petitioners could not achieve positive Net Foreign Exchange Earning as the operations of the petitioners Unit was discontinued for a long period from November 2010 till April 2014. It was pointed out that the petitioners have deposited the amount equal to 1% of short-fall in Net Foreign Exchange as per Rule 80 of the SEZ Rules, 2006. In such circumstances, Mr. Dave submitted that the unintentional lapse of not achieving positive Net Foreign Exchange during certain period now stands regularized. 4.5. It was further submitted that letter of approval issued through any manufacturing unit for export can be cancelled under Section 16 of the SEZ Act, 2005, if the condition prescribed therein are violated but in the facts of the case, there is no allegation against the petitioners for violation of any condition prescribed in Section 16 of the SEZ Act, 2005. It was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, it would operate prospectively. 4.9. Reliance was placed on the Circular dated March, 14, 2019 issued by the Department of Commerce, Ministry of Commerce & Industry, wherein it is clarified that Rule 80 of the SEZ Rules, 2006 inserted in September 19, 2018 would apply prospectively. It was therefore, submitted by the learned advocate for the respondents that shortfall in Net Foreign Exchange Earnings by the petitioners is therefore, required to be dealt with under the provisions of the Foreign Trade [Development and Regulation] Act, 1992. 4.10. With regard to the contention that Board of Approval could not have cancelled the letter of approval without following the procedure prescribed under Section 16 of the SEZ Act, the learned advocate for the respondents submitted that the Board of Approval has only rejected the renewal/extension of letter of approval while exercising power under Rule 18(4) of the SEZ Rules, 2006 and has not passed any order for cancelling the letter of approval as per Section 16 of the SEZ Act, 2005. 4.11. Learned advocate for the respondents therefore, prayed that the petition is required to be rejected as the same is devoid of any merits. 5. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, ex officio; (f) the Director General of Foreign Trade or his nominee - Member, ex officio; (g) the Development Commissioner concerned - Member, ex officio; (h) a Professor in the Indian Institute of Management, being a society registered under the Societies Registration Act, 1860 or the Indian Institute of Foreign Trade, being a society registered under the Societies Registration Act, 1860, as may be, nominated by the Central Government - Member, ex officio; (i) an officer not below the rank of Deputy Secretary to the Government of India dealing with the Special Economic Zones in the Ministry or Department of the Central Government, dealing with commerce to be nominated by the Central Government - Member- Secretary, ex officio: Provided that the member, being the Joint Secretary nominated under clauses (b) to (d) of this sub-section, may, if he is unable to attend the meeting of the Board, authorise any other officer to attend the meeting of the Board on his behalf. (3) The term of office of an ex officio Member shall come to an end as soon as he ceases to hold the office by virtue of which he was so nominated. (4) For the purpose of performing its functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under sub-section (1), may prefer an appeal to the Board within such time as may be prescribed. (5) No appeal shall be admitted if it is preferred after the expiry of the time prescribed therefor: Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the Board that he had sufficient cause for not preferring the appeal within the prescribed time. (6) Every appeal made under sub-section (4) shall be in such form and shall be accompanied by a copy of the order appealed against and by such fees as may be prescribed. (7) The procedure for disposing of an appeal shall be such as may be prescribed: Provided that before disposing of an appeal, the appellant shall be given a reasonable opportunity of being heard." 6.2. Rule 80 of the SEZ Rules, 2006 reads thus : "Rule 80 : If an Special Economic Zone Unit, in case of bona fide default, fails to achieve the minimum specified Net Foreign Exchange or specified value addition, then such shortfall may be regulated after the Unit deposits an amount equal to one per cent. of shortfall in Free on Board Value." 7. A bare reading of minutes recorded by the Board of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
