TMI Blog2021 (4) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... export obligation to be achieved by the petitioner over a period of eight years for a value of ₹ 2,88,57,944.00 under the said license. Thus, the calculation of average export performance of ₹ 1,97,93,333.33 per annum in the licence was skewed. Failure of the petitioner to achieve a average export performance for the appellant to ₹ 1,97 93,333.33 per annum cannot be to the disadvantage of the petitioner, if the petitioner was in a comfortable position to achieve the export obligation of ₹ 2,88,57,944.00 - In this case, it is the case of the petitioner that between 2002-2003 and 2004-2005 the petitioner had exported goods worth ₹ 39,55,76,700.00 which exceeded the overall export obligation to be achieved by the petitioner for a sum of ₹ 2,88,57,944.00. This would require a proper examination both by the officers of the Ministry of Commerce i.e. the respondent Nos.1 and 3. Case remanded back to the respondents under the Ministry of Commerce and the Ministry of Finance to re-examine the issue a fresh in the light of the above observation and after considering the submission of the petitioner. Benefit of several amnesty schemes which were issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession taken by the Union Bank of India, Overseas Branch, Chennai 24.10.2010 and 10.11.2011. 6. It is further case of the petitioner that while applying for EPCG license, the petitioner made certain mistakes as a result of which, the annual average of the past export performance was fixed as ₹ 197,933,333.33/- as mentioned above. It is further case of the petitioner that though the petitioner was required to export 5 times of the CIF value of the import capital goods, it discharged the Enquiry Officer within the 1st order of the license itself. It is submitted that the export obligation fixed on the petitioner was ₹ 2,88,67,944/- equivalent to US$ 598,919.99 and that the average export value achieved by the petitioner as on 05.12.2013 was ₹ 2,88,67,944/- and therefore the petitioner was not required to achieve the average value of ₹ 197,933,333.33/- for all the years during which period the license was in force. 7. The petitioner was issued with a notice dated 10.03.2011, by the Zonal Joint Director General of Foreign Trade under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Chapter V of the Import and Export Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2013, only after recovery notice was issued on 26.06.2018 and therefore the petitioner was entitled for relief. 11. Mr.T.V.Ganesh, learned SCGPC for the 1st to 3rd respondents ( the officers under the Commerce Ministry) in W.P.No.20146 of 2018 submitted that the writ petition was not maintainable as the petitioner obtained license by filing copy of the Registration-cum-Membership Certificate issued by the Apparel Export Promotion Council dated 29.10.2001, a copy of the Permanent Registration Certificate issued by the Regional Joint Director of industries and commerce dated 14.12.2001 and copy of the Auditor's Certificate dated 03.01.2003 along with the application for EPCG license and it is pursuant to the aforesaid documents filed by the petitioner, the EPCG license dated 06.01.2003 was issued to the petitioner on the strength of these documents as per the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Chapter V of the Import and Export Policy and relevant Hank Book of Procedures 2002-2007 vol.I as was in force during the period in dispute when the license was issued. 12. The petitioner neither filed any documents to substantiate dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participated nor filed any reply and therefore the impugned order dated 05.12.2013, Order-in-Original No.23390 of 2014 was passed. It is further submitted that the petitioner cannot plead ignorance and in any event, in absence of any documents to substantiate the discharge of export obligation by the petitioner, the petitioner was bound to pay customs duty. Foregone, at the time of import of capital goods under the EPCG licenses read with relevant notifications issued under the Customs Act, 1962. 16. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel in W.P.No.31788 of 2018 and the learned Standing Central Government Panel Counsel in W.P.No.20146 of 2018 for the respondents. 17. The petitioner had applied for EPCG license based on three documents furnished at the time of application with the Director General of Foreign Trade for grant of EPCG license No.0430000906 dated 06.01.2003 under the provisions of Export Import Policy for the Assessment Year 2002-2003. 18. It was issued based on the average exports made by the petitioner during the last three years. The annual average of ₹ 197,933,333.33/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver a period of eight years under the aforesaid EPCG license. 22. It is the case of the petitioner that the requirement to maintain its average of the past three years export performance of the same or similar goods mentioned in para 2 of the Annexure A of the EPCG license dated 6.1.2003 was wrongly arrived by the licensing authority based on the incorrect information by the petitioner on the export of fabrics as well even though the petitioner was required to maintain such export performance of the ready-made garments alone. 23. To discharge the export obligation for import of capital goods for a sum of ₹ 2,88,57,944.00.( ₹ 57,73,588 x 8) in eight years, the average export performance of the petitioner per year would be only ₹ 36,07,243/-. Therefore, it would have been sufficient for the petitioner to maintain an average export performance of ₹ 36,07,243/- per annum only i.e [₹ 2,88,57,944.00/8]. 24. However, the average export performance to be achieved by the petitioner in a year was fixed in the EPCG license dated 6.1.2005 at ₹ 1,97,93,333.33 per annum. The said average export performance of ₹ 1,97,93,333.33 per annum almost eq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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