High Court allows encashment of bank guarantee under Foreign Trade Act, denies ad-interim relief, expedites case hearing

Shah Nanji Nagsi Exports Pvt. Ltd. Versus Joint Directorate General of Foreign Trade And Others

Shah Nanji Nagsi Exports Pvt. Ltd. Versus Joint Directorate General of Foreign Trade And Others - 2016 (340) E.L.T. 168 (Bom.) Issues:
1) Admission of writ petition based on arguable questions raised.
2) Consideration of interim relief regarding imposition of penalty.
3) Challenge of imposition of actual user condition and fraudulent activities by the petitioner.
4) Direction regarding encashment of bank guarantee by authorities.
5) Expedited hearing of the case.
6) Request for continuation of ad-interim order for challenging the judgment in a higher court.

Analysis:
1) The High Court admitted the writ petition after considering arguable questions raised by both sides and perusing the affidavit in reply and rejoinder. The respondents waived service, and the court proceeded with the admission of the petition.

2) Regarding interim relief, the petitioner argued that the case involved the imposition of a penalty, distinct from tax payment issues. The petitioner requested the continuation of the ad-interim order until the final disposal of the writ petition. However, the court noted the appellate authority's order on the petitioner's appeal and the findings of malafide intentions by the petitioner in creating false documents for imported corn. The court directed that the authorities could encash the bank guarantee provided by the petitioner, subject to the final orders of the petition.

3) The court addressed the challenge to the imposition of the actual user condition and fraudulent activities by the petitioner. The authorities found that the petitioner had obtained licenses for import with actual user conditions but engaged in fraudulent activities by creating false documents and selling the imported corn. The court upheld the imposition of the condition and denied the petitioner equitable and discretionary interim relief due to fraud and malafides.

4) The court clarified that the encashment of the bank guarantee by authorities under the Foreign Trade Act and the Central Government was permissible. The petitioner's request to continue the ad-interim order for challenging the judgment in a higher court was rejected, with the court stating that the authorities could encash the bank guarantee without apprehension about returning the amount if the petitioner succeeded.

5) Additionally, the court expedited the hearing of the case to ensure timely resolution of the matter.

6) The petitioner's request for the continuation of the ad-interim order for four weeks to challenge the judgment in a higher court was opposed by the respondents and subsequently rejected by the court, emphasizing that the authorities could encash the bank guarantee without concerns about refunding the amount in case of the petitioner's success.