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TMI Blog2024 (6) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... is now an employee in some other company. It is facing liquidation after cancelled an order midway by the Bharat Sanchar Nigam Limited. It was challenged in the writ appeal in W.A.(MD).650 of 2010. The Hon'ble Division Bench of this Court found that the cancellation of order is illegal. The petitioner had exported goods to Brazil in the year 2004-2005 and the value of the order was about 10 million US dollars. This supply was made to a customer with whom the petitioners had an existing relationship and it was believed that the transactions will be honoured as done in the previous instances. Unfortunately, after supply of equipments, purchasing company went in doldrums and did not clear the goods from the port. The petitioners were caught in a bind as the equipments could not be brought back also and the port charges involved was also unaffordably high and the equipments also could not be used. 2.1 Though efforts were made to locate some alternate purchasers, but that also did not materialise and efforts were made through Indian Embassy at Brazil for recovery of the proceeds of the export and it was also not materialised. The Indian Embassy in Brazil confirmed that bringing ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions. Therefore the delay of more than 10 years with regard to the subject transaction is unfair and deprived the petitioners reasonable opportunity to defend themselves in respect of the alleged contraventions. The copy of the letter dated 01.07.2013 was not furnished to the petitioners and the entire information received from the dealers / banks had been behind back of the petitioners and without giving any opportunity for petitioners herein to impeach the veracity of the information, the impugned order has been passed. No materials gathered behind one's back can be relied on without giving opportunity to the said person to challenge the correctness and accuracy of the said information. He further submitted that though there is alternative remedy by way of appeal under Section 18 of FEMA, in view of the violations of the principles of natural justice and the error of law apparent on the face of it, the writ petition is very much maintainable as against the order impugned in this writ petition under Article 226 of the Constitution of India. 4. The respondent filed counter and the learned Senior Panel Counsel appearing for the respondent submitted that FEMA, 1999 itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Reserve Bank of India, exporters are allowed to write off outstanding export dues only if the aggregate value of such export bills written off and bills extended for realisation does not exceed 10% of the export proceeds due during the calender year and such export bills are not a subject of investigation by the respondent. 4.2 He further submitted that the petitioner had come to the adverse notice of the respondent for the contravention of the provisions of FEMA as early as in the year 2007. Only after, the petitioners approached the authorised dealers for write off the unrealised export proceeds. One of the authorised dealer i.e. Canara Bank by way of its letter dated 22.10.2008 had requested the respondent to give no objection certificate for processing the request for self write off the export dues by the petitioners. The City Bank, Anna Salai by its letter dated 01.07.2013, stated that the bank had received request for self write off with incomplete details. Therefore, it was not accepted by them. Therefore, it is clear that the petitioners made request for self write off is only afterthought with intention to evade from the clutches of law. As per the Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake proper submissions. Therefore, the disputed questions of facts cannot be gone into by way of writ petition under Article 226 of the Constitution of India. 5. Heard, the learned counsel appearing on either side and perused the materials available on record. 6. From the above submissions, in this writ petition, the points for consideration are as follows: (i) Whether the writ petition is maintainable or not when the statutory alternative remedy is available? (ii) Whether the order impugned can be sustainable or not? 7. As against the order passed by the adjudicating authority i.e. the respondent, there is statutory appeal for any person aggrieved by the order passed by the adjudicating authority under Section 17 of the FEMA, 1999. But the existence of the alternative remedy is not an absolute bar to the maintainability of this writ petition under Article 226 of the Constitution of India. It can be entertained where there is a breach of fundamental rights, where there is violation of the principles of natural justice, where there is an excess of jurisdiction or where challenge to the vires of the statute or delegated legislation. 8. The specific ground raised by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the amount representing the full export value or, if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in a market outside India" 10. It is also relevant to extract the provisions under Regulations 9(1) and 13 of Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 hereunder: "9. Period within which export value of goods/software to be realized.- (1) The amount representing the full export value of goods or software exported shall be realized and repatriated to India within (twelve months) from the date of export: Provided that where the goods are exported to a warehouse established outside India with the permission of the Reserve Bank, the amount representing the full export value of goods exported shall be paid to the authorized dealer as soon as it is realized and in any case within fifteen months from the date of shipment of goods: Provided further that the Reserve Bank, or subject to the directions issued by the Bank in this behalf, the authorized dealer may, for a sufficient and reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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