9911796707
TMI Blog2009 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduced 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. 0410082359 for Rs. 24,69,901/- on 22-6-2006. As it is necessary for any manufacturer/exporter of garments to become a member in Apparel Exporters Promotion Council (AEPC) and any exporter of fabrics to become a member in Federation of Indian Exporters Organisation (FIEO), the petitioner became a member of both the councils. In this regard, the petitioner by a letter dated 7-6-2006 to the 2nd respondent had clarified that she is also a merchant-exporter apart from being a manufacturer-exporter and for that purpose, she had obtained RCMC (Registration Cum Membership Certificate) from FIEO for multi product exports. Thereafter, the petitioner, by letter dated 28-6-2006 to the 2nd respondent, requested for the transferability of DFIA licence as she had completed the export obligation and received the Foreign Inward Remittance against her exports even before applying for DFIA licence as per 4.72 of FTP. By a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 petitioner went to the office of the 2nd respondent and met the zonal Director personally and stated that in view of the clarification issued by Circular No.17, dated 24-8-2006, the DFIA was properly issued and since no tie-up arrangement with the supporting manufacturer was necessary, the name and address of the manufacturer was sufficient. But, the 2nd respondent ignored the representation of the petitioner and again referred the matter to the 1st respondent. The 1st respondent by letter dated 13-11-2006 informed the 2nd respondent that the Policy Circular No.17 is consistent with the provisions of the current policy as well as the customs notification regarding DFIA scheme. The petitioner, by letter dated 14-11-2006 to the 2nd respondent referred to the letter dated 13-11-2006 issued by the 1st respondent and submitted the name and address of the supporting manufacturer as Naveen Textiles, Surat, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 again before this court with the present writ petition. 3. In the counter filed on behalf of the respondents, it is stated that the exporter is entitled for authorisation only if he complies with the requisite formalities and therefore, the Duty Free Import Authorisation has to conform to the relevant provisions of the policy and customs Notification. As per the provision of para 4.4.2 of the Foreign Trade Policy, it is very clear that the authorisation can be issued either to a manufacturer Exporter or a merchant Exporter tied to a supporting manufacturer. According to the respondents, the petitioner has procured the items from some trader and is trying to bring in misleading provisions. The petitioner has claimed her category as "Manufacturer Exporter" not only in the E. Commerce (online Application) but also in the manual application submitted by her. it is the further case of the respondents t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 4-10-2007 correctly set out the various policy directives in para 3.2, but failed to refer to the letter dated 14-11-2006 given by the petitioner, in which the name and address of the supporting manufacturer was given as Naveen Textiles. It is also her contention that the 1st respondent gave a perverse finding that the issue covered by the appeal is relating to export of fabrics and therefore, SSI Regulation Certificate held by the petitioner for 'garments' is neither relevant nor acceptable for the DFIAs. In support of her contentions, the learned Senior Counsel has relied on a decision of the Supreme Court reported in 1986 (2) SCC 679 (Comptroller and Auditor General of India v. K.S. Jagannathan), relevant paragraphs of which would run thus: 18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the registered DFIA licence dated 22-6-2006 and the petitioner, by letter dated 10-7-2006 to the 2nd respondent, replied to all the queries raised by the JDGFT in its letter dated 9-6-2006 and requested them to issue the licence with transferability/ EODC/Bond Waiver. After requisite verifications, the Foreign Trade Development officer granted Bond Waiver and transferability for DFIA licence to the petitioner on 11-7-2006. Thereafter, for the purpose of customs verification, the petitioner, by letter dated 12-7-2006 to the Deputy Commissioner of Customs, Chennai, enclosed the DFIA licence along with the other essential documents and the customs authorities, after verification, returned back the documents to the petitioner for transfer in the market. But, the 2nd respondent, by letter dated 3-8-2006, asked the petitioner to surrender the DFIA licence, as the 1st respondent found that the requisite details of the supporting manufacturer was not submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 6. In reply, learned Senior Central Government Standing Counsel for the respondents would submit that the interpretation made by the petitioner about pre-export Duty Free Import Authorisation and Post Export Duty Free Import Authorisation are misleading. It is the further case of the learned counsel that the Duty Free Import Authorisation (DFIA) provision as it existed on the announcement on 1-4-2006 did not provide for any such classification of pre-export D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specifically raised in the appeal and pass fresh orders in accordance with law, within a period of four weeks from the date of receipt of a copy of this order." 11. Though this court, by the above order had set aside the Cancellation Order passed by the 2nd respondent and remitted the matter to the appellate authority, the 1st respondent herein, with a direction to consider the issue specifically raised in the appeal, the 1st respondent, by order dated 29-5-2008, dismissed the appeal for the reasons that (i) the petitioner has herself admitted that she is a manufacturer-exporter of garments only and in the present case, she had obtained DFIA for the export of fabrics only and not garments (ii) as a merchant exporter of fabrics, the petitioner is obligated to supply the details of manufacturer (iii) the petitioner is not entitled for DFIA as a fabric exporter, since no details of manufacturer are given and (iv) policy circular No.17 dated 24-8-2006 stipulates that only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 from FIEO for multi-product exports. In the Cancellation Order, the 2nd respondent has also stated that the petitioner has obtained the DFIA licence without fulfilling the conditions stipulated in para 4.4.2 of the ftp, by mis-declaring the facts. The appellate authority has upheld the view of the original authority by holding that the petitioner is a manufacturer-exporter of garments only, but in the case on hand, they have exported fabrics and not garments and obtained DFIA. The main ground on which both the authorities have dismissed the plea of the petitioner is that, inspite of the obligation to provide the details of the supporting manufacturer, the petitioner, as a merchant-exporter of fabrics has failed to give the details and hence, the firm is not entitled for DFIA. 14. As per Section 15 of the Act, the appellate authority, may after giving to the appellant a reasonable opportunity of being heard, if he so desires, and after making such further inquiries, if any, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njri 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 manufacturer, who has no direct dealing with the petitioner. The second respondent, mainly relying on this ground, has cancelled the DFIA licence issued to the petitioner. The appellate authority has dismissed the appeal in the light of the power conferred under Section 15 of the Act and in view of the Foreign Trade Policy. 18. A question was raised claiming benefit of the Policy Circular No.17, dated 24-8-2006, whereby, for the exporters, who seek redemption and transferability of the scheme on completion of the stipulated export obligation, documentary evidence in respect of supporting manufacturer is not insisted upon. It is seen from the records that the petitioner has applied for the benefit of the scheme on 9-6-2006 and based on the same a licence was granted on 22-6-2006. However, the petitioner enclosed the essential document for the purpose of verification of the customs authority on 12-7-2006 and the same was verified and found that the requisite details of supporting manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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