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TMI Blog2009 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... s. C. Uma, for the Petitioner. Shri P. Chandrasekaran, SCGSC, for the Respondent. [Order].- This writ petition is filed challenging the order of the 1st respondent dated 29-5-2008, confirming the Cancellation Order dated 5-4-2007 passed by the 2nd respondent and to direct the 2nd respondent to immediately issue the Post Export Transferable Duty Free Import Authorisation license to the petitioner for the value of Rs. 24,64,948.90 with validity of 24 months from the date of issue of the Duty Free Import Authorisation. 2. The case of the petitioner as stood exposited from the affidavit is, as under: (i) The petitioner is a entrepreneur engaged in the business of export of garments and fabrics for the past five years. She claims to be a registered Manufacturer-Exporter of garments and a registered Merchant-Exporter of fabrics. As per the Duty Free import Authorisation (DFIA) Scheme introduced by the Government of India, Ministry of Commerce to encourage small exporters, the petitioner applied to the 2nd respondent herein on 9-6-2006 for availing the licence under the scheme and the 2nd respondent issued licence to the petitioner under the said scheme having No. 041008235 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Book of Procedure 2004-09 (HBP). (iii) The 1st respondent clarified the position and issued the clarification letter dated 11-8-2006 stating that when an exporter seeks export obligation, redemption and endorsement of transferability, documentary evidences such as SSI registration etc. from the supporting manufacturer/jobber need not be insisted upon and the copy of the same clarification will be sent to the 2nd respondent as a policy circular. On 14-8-2006, the petitioner met the 2nd respondent and submitted a copy of the letter dated 11-8-2006 issued by the 1st respondent regarding the clarification. The 2nd respondent JDGFT, Chennai refused to consider the letter dated 11-8-2006 issued by the 1st respondent and stated that unless it comes under the policy circular, the clarification will not be considered. Thereafter, on 24-8-2006, the Policy Circular No.17 (RE-2006)/2004-09 was issued to the effect that in cases, wherein the exporters seek redemption and transferability of DFIA on completion of the stipulated export obligation, documentary evidence such as SSI registration etc. in respect of supporting manufacturer/jobber may not be insisted upon. (iv) On 25-8-2006, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the petitioner filed a writ petition in W.P. No. 34894 of 2007 before this court to quash the same and for a direction to the 2nd respondent to immediately issue the Post Export Transferable Duty Free Import Authorisation to her with validity of 24 months from the date of issuance of the Duty Free Import Authorisation. The said writ petition was disposed of by an order dated 30-4-2008, holding that the appellate authority has not applied its mind while passing an order in the appeal and that the policy circular only states that documentary evidence need not be insisted upon and the authorisation holder has to only disclose the names and addresses of the supporting manufacturers for the issuance of post Export DFIA. The order dated 4-10-2007 passed by the 1st respondent was set aside and the matter was remitted back to the 1st respondent with a direction to consider the said issue specifically raised in the appeal and pass fresh orders in accordance with law. But, the 1st respondent, by order dated 29-5-2008 again dismissed the appeal, refusing to interfere with the cancellation order dated 5-4-2007 passed by the 2nd respondent. Having no other alternative, the petitioner is once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Small Scale Industries Unit/Central Excise Registration Certificate does not arise in the case of the petitioner, since it is a clear case of mis-declaration for availing the benefit of Duty Free Import Authorisation Scheme, which is meant for a genuine exporter as framed by the Foreign Trade Policy. The respondents further stated that the petitioner's mis-declaration in the application and the consequential availment of authorisation to the tune of Rs. 24,64,948.90 against export of Polyester Fabrics done by S. Bill No. 2365869 dated 10-6-2006 is illegal. 4. Heard Mrs. Nalini Chidambaram, learned senior Counsel appearing for the petitioner and Mr. P. Chandrasekaran, learned Senior Central Government Standing Counsel for the respondents. 5. Learned Senior Counsel appearing for the petitioner contended that the 2nd respondent passed the cancellation order without appreciating the difference between Pre-export DFIA and post export DFIA. According to the senior counsel, the 1st respondent failed to appreciate the erroneous reasonings in the order of the 2nd respondent and refused to set aside the said order. She further contended that the 1st respondent, in the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations." 7. I have carefully considered the submissions made by the learned counsel on either side and the decisions relied on by them; also perused and materials available on record. 8. It is seen that the petitioner had applied to the 2nd respondent herein on 9-6-2006 for licence as per the DFIA scheme and that the 2nd respondent had issued licence to her on 22-6-2006. The petitioner also became a member of AEPC and FIEO, as stipulated. By letter dated 28-6-2006 to the 2nd respondent, the petitioner had requested for transferability of DFIA licence. However, by letter dated 6-7-2006 to the 2nd respondent, the petitioner has stated that she has not imported anything or produced domestic goods and that she has completed the export obligation in anticipation of DFIA. 9. It is further seen that the FTDO, by letter dated 7-7-2006, requested the petitioner to furnish documents for a waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa, this court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers. 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or an irrelevant considerations as by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High court can, in the exercise of its jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached this court by way of a writ petition in W.P. No. 34894 of 2007 and this court, by order dated 30-4-2008 disposed of the matter with the following observation: "10. From the perusal of the order of the first respondent which is passed under Section 15 of the Foreign Trade Policy, I am of the view that the first respondent has not applied his mind while passing an order in the appeal. The contention of the petitioner as to whether the petitioner being a SSI unit is required to submit the names and addresses of supporting manufacturers and the documentary evidence such as SSI/Central Excess Registration of supporting manufacturers are also required to be produced by the petitioner is not decided. From the perusal of the circular dated 13-11-2006 issued by the Directorate General of Foreign Trade, it is evident that the policy circular only states that documentary evidence need not be insisted upon and the authorisation holder has to only disclose the names and addresses of the supporting manufacturers for the post Export DFIA. Hence, the order of the appellate authority is set aside and the matter is remitted back to the appellate authority to consider the said issue spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e about giving exemption for documentary evidence in respect of supporting manufacturers. Above all, as a merchant exporter of fabrics, it is necessary for the petitioner to have tie-up with a supporting manufacturer of fabrics, as qualified under the scheme; in the absence of any tie-up and as the petitioner herself has stated that the goods have been obtained from a trader, her claim ought not to be considered. 13. Looking into the merits of the case, the question whether the responderts have considered the matter in the light of the Foreign Trade Policy and the circulars has to be considered in the light of the factual matrix. A reading of the Cancellation Order passed by the 2nd respondent/original authority would show that the DFIA licence was issued under para 4.4.2 of the FTP, where the petitioner has failed to furnish the details of the supporting manufacturer, since the DFIA licence was issued on the understanding that the petitioner was a "Merchant Exporter" for the export product for which she does not possess an RCMC for the export product as per her application. But, what is understood from the affidavit of the petitioner is that the petitioner has obtained RCMC fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods from a trader and not from a manufacturer cannot be a ground to decide this matter, she relied on a Supreme Court ruling in K.S. Jaganathan's case, wherein it is stated that, when a public authority wrongly exercises the discretion conferred upon it by a statute or a rule or a policy decision of the government by ignoring the relevant considerations and materials, a High Court is empowered to issue a writ of mandamus in order to prevent injustice resulting to the concerned parties. 17. As per the Policy Circular No.17 dated 24-8-2006, for exporters who seek redemption and transferability of DFIA on completion of the stipulated export obligation, documentary evidence in respect of supporting manufacturer is not insisted upon. Accordingly, the petitioner has given the name and address of the supporting manufacturer as M/s. Naveen Textiles, Surat. But, the petitioner herself has stated in the affidavit that she has procured the materials for export from a trader, namely, M/s. Sanjri Tex, Surat. While that be so, the question which immediately arises for consideration is that when the petitioner has procured goods from a trader, how can she give the name and address of a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be interpreted in order to achieve the object of providing the benefit under the scheme to the deserving persons. 20. In the instant case, it is seen that both the original authority as well as the appellate authority have exercised their powers in accordance with law and fairly and reasonably considered the policy decision and the petitioner's entitlement of the benefits under the scheme. They have considered all the relevant factors and exercised their powers and discretion in such a manner as those eligible alone are benefited under the scheme. The petitioner herein has not proved her case for entitlement of the benefit under the DFIA scheme and the authorities have rightly looked into the matter and accordingly cancelled the DFIA licence granted to the petitioner. 21. In view of the above, it is crystal clear that the petitioner has not made out a case for claim of DFIA licence for the export of fabrics. The details given by the petitioner that M/s. Naveen Textiles, Surat is their supporting manufacturer for the export of fabrics cannot be taken into account as she herself has admitted that she has procured the materials from a trader in the open market, whose manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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