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TMI Blog2021 (4) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... refix the annual average turnover and issue an Export Obligation Discharge Certificate to the petitioner. 3. W.P.No.31788 of 2018 has been filed for a Writ of Certiorari, to quash the impugned Order-in-Original No.23390 of 2014 dated 05.12.2013 passed by the Deputy Commissioner of Customs (EPCG), Custom House, Chennai-1. 4. For disposal of these two writ petitions, facts that are relevant are stand. The petitioner was engaged in manufacture of ready made garments and had obtained an Export Promotion Capital Goods license under the Export Import Policy issued under the Foreign Trade (Development and Regulation) Act, 1992. As per the license issued to the petitioner on 06.01.2003, the petitioner was required to export 5 times the CIF value of the capital goods within a period of eight years from the date of issuance of the license. As per the license, the petitioner was entitled to import capital goods worth US$ 598,919.99. The petitioner was also required to maintain average of past three years export performance of the same and similar products mentioned in Paragraph 2 of the said license of ready made garments. The annual average of the past export performance was fixed as Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on realization of mistake, the petitioner approached the Director General of Foreign Trade, New Delhi and the Zonal Joint Director General of Foreing Trade, Chennai and requested the officers to re-fix the annual average of Rs. 12,98,71,410/-, taking into account the annual average value of the export ready made garments of the petitioner during the period 1999-2000 to 2001-2002. 9. Under these circumstances, the representation dated 29.05.2012 of the petitioner was considered and disposed by the officers under the Ministry of Commerce. 10. As far as W.P.No.31788 of 2018 is concerned, it is the contention of the petitioner that though the petitioner was issued with a Show Cause Notice dated 19.10.2011 by the Office of the Deputy Commissioner of Customs/1st respondent ( in W.P.No.31788 of 2018), the impugned Order-in-Original No.23390 of 2014 dated 05.12.2013 was not served on the petitioner and was sent to the petitioner's factory address bearing Door No.19, Vinayagapuram, 2nd Street, Arumbakkam, Chennai and therefore it remained un-communicated on the petitioner as the factory had been auctioned by the Union Bank of India, Overseas Branch, Chennai 24.10.2010 and 10.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es made thereunder. 14. The learned counsel further submits that the petitioner was called for hearing on 22.03.2011 between 3.00 p.m., and 5.00 p.m.. However, the petitioner ignored the said notice and woke up after 14 months and filed representation dated 29.05.2012. It is submitted that re-fixation of the export obligation and the annual average from 197,933,333.33/- to Rs. 12,98,71,410/- after the expiry of the license cannot be permitted. In any event, the petitioner has not filed any documents to substantiate the discharge of export obligation for the respondents to issue Export Obligation Discharge Certificate and therefore prays for dismissal of the writ petition in W.P.No.20146 of 2018. 15. Defending the impugned order, Ms.Hema Muralikrishnan, learned Senior Standing Counsel for the respondents/Customs Department in W.P.No.31788 of 2018 submits that the petitioner has not participated in the Show Cause Proceedings dated 19.10.2011 issued by the Deputy Commissioner of Customs Department and therefore cannot plead violation of principles of natural justice as the petitioner did not produce any documents or evidence to show that it had fulfilled the export obligations. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n achieved by the petitioner was 5 times the CIF value of the capital goods and the petitioner has discharged the export obligation in the very first year. The petitioner submitted that the petitioner achieved the average export during the Assessment Years 2003-2003 to 2004-2005, which is detailed below:- Financial Year Total Value of Exports (Other Than Exports Under Specific EO) INR Details of Shipping Bills For fulfilment of Average Export Obligation 2002-2003 134787968.00 134787968.00 2003-2004 152476106.00 152476106.00 2004-2005 108312626.00 108312626.00 Total Rs. 395576700.00 Rs. 395576700.00 21. Facts are not in dispute. The petitioner had imported capital goods under EPCG license for a value of Rs. 57,73,588/-[US$ 1,19,793.99]. Thus, under the aforesaid license, the petitioner was required to export ready made garments equivalent to five times the value of the imported goods. In other words, the petitioner was required to export goods were Rs.,2,88,57,944.00 (Rs. 57,73,588 x5 ] or for US $ 5,98,919.99- [ US $ 1,19,793.99 x5] over a period of eight years under the aforesaid EPCG license. 22. It is the case of the petitioner that the requirement to maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n W.P.No.31788 of 2018 and remit the case 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 issued by the Ministry of Commerce from time to time may also be extended if the petitioner is otherwise entitled to the same. These may also be examined by the officers. 28. The petitioner is therefore directed to file a fresh copy of the application for discharge of export obligation within a period of 30 days from the date of receipt of a copy of this order. The officers under the Ministry of Commerce shall examine the issue a fresh and decide as to whether the petitioner has indeed discharged the Export Obligation or whether there was any short fall and thereafter pass appropriate orders in accordance with law on merits. 29.The officers of the customs Department shall await for further orders before passing a fresh Denovo orders on merits. The entire exercise shall be carried out by the respondents/officers within a period of six months from the date of receipt of a copy of this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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