TMI Blog2016 (10) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... n can be considered provided inputs are common and properly accorded for as per norms - also considered as to how the exercise of clubbing at the instance of the petitioners firstly enabled the petitioners to prolong the period for fulfillment of the export obligation and secondly, that the petitioners were aware that the first of such authorisation can be taken into consideration for relaxing the period within which the export obligation has to be completed - Petition dismissed - Writ Petition No. 2325 of 2015 - - - Dated:- 6-9-2016 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. Mr. Jamshed Mistry with Mr. Rajeev Ravi for the Petitioner Mr. Ram Apte, senior counsel with Mr. M.S. Bhardwaj and Mr. Neel Helekar for the Respondent JUDGMENT [ Per S.C. Dharmadhikari, J. ] 1 By this petition under Article 226 of the Constitution of India, the petitioners pray for issuance of a writ of certiorari or any other appropriate writ, order or direction calling for the records and proceedings pertaining to the order dated 11th February, 2014, passed by the respondent No.2 and after considering the validity and legality thereof, particularly in relation to a condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to allow duty free import of inputs which are physically incorporated in the export product and in that regard, reliance is placed on paragraph 4.1.7 of the Foreign Trade Policy 2004-2009. Reliance is also placed upon the Handbook of Procedure Volume-I and the appendices thereto. 5 It is the claim of the petitioners that they applied to respondent No.4 for advance authorisation on 17th June, 2008, pursuant to which the fourth respondent issued to them an advance authorisation dated 14th July, 2008, having validity of 24 months and export obligation period of 24 months. The quantity of inputs that was allowed to be imported has been set out in paragraph 4.9 as against which there is an obligation to export a minimum quantity of finished goods. Annexures F and G are copies of the authorisation and a statement disclosing the details of import of inputs and export of finished goods carried out under this authorisation. It is the claim of the petitioners that a pro-rata calculation of the imports to the exports would demonstrate that there is no shortfall in terms of the quantity as also in terms of value. In fact, there is an excess export to the extent of 109.636 MT. 6 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy during the course of its validity and implementation. Therefore, the case of the petitioners is that such Committee approved their request in a meeting held on 4th September, 2012. However, the information regarding approval was communicated on 7th December, 2012, by amendment No.2. The petitioners were informed that the authorisation was valid till 6th June, 2013 and the export obligation period was till 6th June, 2013. 7 It is in these circumstances that the petitioners state that during the pendency of the above amendments and authorisations, a demand-cum-show cause notice was issued on 8th October, 2012, calling upon the petitioner No.1 to submit proof of completing the export obligation pro-rata to the duty free imports made under the July 2008 authorisation and to submit the documents as set out in the notice within 15 days of the receipt of the notice, failing which, the authorities would proceed to take action, more particularly referred therein. 8 A reply was given by the petitioner No.1 and they submitted that while its July 2008 authorisation has expired, it was in the process of carrying out further exports under the other authorisations and thereafter apply f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy and the authorities. It is in these circumstances the petitioners pray that the relaxation granted by the respondent No.2 vide an order dated 4th September, 2012, extended the EOP till 6th June, 2013. This is an extension pertaining to the March 2009 authorisation. That is in all 51 months. However, by the condition imposed only the exports made during the period of the earliest authorisation would be taken into consideration for the purpose of accounting of the export obligation, namely, the exports made till July, 2012. Therefore, the exports made between August 2012 to April 2013 would not be taken into consideration. That is how the very purpose of the granting the relaxation is rendered redundant. That is how the petitioners applied for information under the provisions of the Right to Information Act, 2005. They sought information in relation to the similar applications for clubbing made by some other units whose details are set out in paragraph 4.25 and they prayed for relaxation / waiver of the impugned condition by bringing the other instances to the notice of respondent No.2. That request was considered on 3rd September, 2014, but it was rejected on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion taking into account the peculiar facts and circumstances of each case. In two other cases the clubbing was allowed without imposition of the impugned condition. That is why Mr. Mistry would submit that the Handbook of Procedures is a procedural manual. All rules of procedure are the handmaids of justice. Therefore, a liberal interpretation of the procedural rules is permissible. The statutory discretion cannot be controlled and regulated by such rigid adherence and interpretation to procedural Rules. For all these reasons he would submit that for the bona fide and genuine attempts by the petitioners to fulfill their export obligations within time, they deserve an unconditional relaxation. In all other cases, that was granted but the petitioner was singled out for such a treatment. The refusal to rescind these orders / conditions was, therefore, unjustified given the fact that the Handbook of Procedures was amended so as to enable the exporters to fulfill their obligation in an extended period. 14 On the other hand, our attention is invited to the affidavit-in-reply. It is submitted that there is no substance in the arguments that the principles of natural justice were not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorisation for completing the balance exports. The petitioner again approached the Policy Relaxation Committee in December 2013, with a new request for clubbing of the advance authorisation dated 14th July, 2008, and advance authorisation dated 13th March, 2009, which request was considered by the Policy Relaxation Committee in its meeting held on 11th February, 2014. It granted the clubbing, subject to the condition that exports made within four months from the date of the earliest authorisation dated 14th July, 2008 upto 31st July, 2012, shall be taken into consideration for export obligation fulfillment as per the prevailing norms. The Policy Relaxation Committee has allowed a clubbing of two authorisations for exports made within 48 months from the date of authorisation for any export beyond this period had to be regularised by petitioner No.1 by paying the accrued duty plus interest as per paragraph 4.28 of the Handbook of Procedure 2009-2014. The petitioners applied for relaxation of this condition on 24th February, 2014, by a representation and cited the cases of two other units, but the Committee observed in its decision that these cases are different from that of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure purpose and not for any further exports / imports. Pertinently, such a condition is not challenged. Then condition No. III appearing at page 43 in the order dated 11th February, 2014, reads as under : III. Exports made within 48 months from the date of earliest Authorisation i.e. upto 31.07.2012 shall only be taken in to consideration for EO fulfilment and clubbing subject to payment of composition fee @ 0.5% on FOB value of export made beyond the stipulated EOP in the earliest Authorisation. RA is directed to examine the case in terms of Para 4.1.6 of FTP and ensure value addition of minimum 15%. The 15% value addition for evaluating entitlement is to be applied on the entire FOB and CIF of the authorisations to be clubbed. RA should ensure proper accounting of the duty free inputs with reference to the export product while clubbing the Authorisations. 19 On a perusal of this condition, we do not find that the petitioners have been treated unfairly and inequitably. A person who has not been able to fulfill the obligations cannot insist on an unconditional relaxation or exemption. The Committee in the elaborate exercise conducted by it and which resulted in passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would enable us to interfere with the impugned conditional exercise. We have, with his assistance, perused the additional documents and compilation which he tendered in that regard. The petitioner's reliance on the Handbook of Procedures and in particular the paragraphs enabling clubbing of authorisations for granting facility by itself would enable us to conclude that it is a facility. All imports and exports of more than one advance authorisation can be considered provided inputs are common and properly accorded for as per norms. The various subclauses of paragraph 4.38, therefore, would not enable the petitioners to claim an unconditional relaxation. 21 The judgment of the Hon'ble Supreme Court in the case of Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan reported in 2011 (273) E.L.T. 345 reiterates the salutary principle that there should be a reasoned order so as to enable the Court while scrutinizing the administrative or quasi judicial orders impugned before it to conclude that the exercise of power is not arbitrary. Further that the discretion is exercised on relevant grounds. That also ensures accountability and transparency of public bodies. The principles ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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