TaxTMI 
TaxTMI 
2016 (5) TMI 891
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....ng the review application filed by the petitioner. 2. Notice of the petition was issued, though no interim relief granted. Counter affidavit has been filed by the respondents. The petitioner did not opt to file rejoinder. Counsels were heard on 2nd December, 2015 and judgment reserved. 3. It is the case of the petitioner; (i) that it is engaged in the business inter alia of repair and manufacture of traction motors and their spare parts, insulation materials, tapes and mica products; (ii) that it made an application dated 28th January, 1999 to the DGFT for issuance of an advance licence under the Duty Exemption Scheme under the FTDR Act and commenced exporting the goods as the petitioner already had export orders in hand; (iii) that on 22nd December, 1999 the petitioner was issued advance licence for Rs. 69,26,100/- under the Duty Exemption Scheme and which licence was subject to the condition that the petitioner shall fulfil an export obligation of Rs. 1,07,58,600/- as Free on Board(FOB) value within the stipulated period which was mentioned of "18 months", meaning, that there was no cut-off date before which export could not have been made; (iv) the petitioner su....
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....uisite manner supported with the bank certificate/documents towards fulfillment of export obligation and treating the petitioner as 100% defaulter in the fulfillment of export obligation. 5. The petitioner preferred statutory appeal and in which as aforesaid repeated opportunities were given to the petitioner to submit the documents. The Appellate Authority has vide impugned order dated 5th January, 2015 dismissed the appeal finding/observing/reasoning: (i) that Part-II of the DEEC book submitted by the petitioner was not logged and endorsed by the Customs; (ii) copy of the shipping bill does not have file number / authorization number and thus could not be accepted towards fulfillment of export obligation; (iii) MODVAT non-availment certificate from Central Excise had not been submitted though form A.R.4, Serial Number 3(a) stated that goods had been manufactured availing facility of MODVAT Credit; (iv) only copy of BRC had been submitted and original BRC had not been submitted; (v) the petitioner had been unable to produce shipping bills showing authorization number/file number; (vi) the petitioner had not produced duplicate/bank certificate copy of BRC; (vii)....
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....sa AIR 1970 SC 253 to contend that the proceedings are in the nature of quasi criminal proceedings and penalty will not ordinarily be imposed unless there is deliberate defiance of law or dishonest conduct. 8. The respondents in their counter affidavit have pleaded: (i) that the petitioner having approached this Court in exercise of its power of judicial review, the power of judicial review can extend only to the decision making process and not to the decision; reliance in this regard is placed on Tata Cellular Vs. Union of India AIR 1996 SC 11 and on judgment dated 15th September, 2014 of this Court in W.P.(C) No.4007/2014 titled Guru Premsukh Memorial College Engineering Vs. All India Council For Technical Education; (ii) that without the petitioner fulfilling the mandatory requirement of DEEC book (Part-II) logged for exports and signed by the Customs showing fulfillment of export obligation in quantities terms with FOB value and original BRCs showing that foreign exchange has been realized, it is not possible to ascertain how much import and export in terms of quantity wise has been made by the petitioner; (iii) export obligation has to be fulfilled both in terms of quant....
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.... Licence required to export; (e) that as per the Rules, the petitioner was required to produce the DEEC book in fulfillment of the export obligation and which admittedly had not been produced; (f) that as per para 7.25 supra of the Handbook of Procedure, the petitioner is required to furnish (i) BCER in the form prescribed and (ii) DEEC book containing details of imports and exports duly endorsed and signed by the Customs Authorities and the petitioner has not produced the same; (g) that Mohan Machines Ltd. supra is a case of advance authorisation and is not applicable; and, (h) that Dencap Electronics (P) Ltd. also is not applicable in the factual scenario and therein the petitioner was found to be not in breach whereas the petitioner here is in breach. 11. The senior counsel for the petitioner in rejoinder argued (i) that the adjudication order imposing penalty is beyond the show cause notice; (ii) that though the adjudication order imposes penalty on the directors of the petitioner also but admittedly no show cause notice was given to them; and, (iii) that the petitioner exported the same goods which was required to export; attention in this regard is drawn to ....
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....bute reliefs, to which the petitioner in accordance with law and Rules is not entitled to. The power under Article 226 is only to ensure that the authorities whose action is subject matter of judicial review, have acted in accordance with law. 14. What remains to be seen is whether the judgments relied upon by the petitioner hold to the contrary. I am afraid, I am unable to read Dencap Electronics (P) Ltd. holding to the contrary. The Division Bench of this Court in that case was concerned with the import of second-hand machinery on concessional duty against an export obligation. The Division Bench as a matter of fact found that though the machine had been imported and trial production commenced but on account of financial crises and non-cooperation from the foreign collaborator export obligation could not be fulfilled and the machinery was confiscated and the Bank Guarantee furnished for the balance import duty to be realised for non-fulfillment of export obligation was encashed and thus the entire import duty realised. It was in this scenario that it was held that Section 11 of the FTDR Act providing for contravention of the provisions thereof and the rules, orders and ex....
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....d at the time of import and export against the Advance Licence entries are made in the DEEC book by Customs to keep record of import/export made against it. Obviously the petitioner, even before the Advance Licence was issued, could not have the DEEC book and it is clear as sky that the exports even if made were not against the Advance Licence and the petitioner is clearly in violation of its obligation thereunder and there is no reason for interference with the orders impugned. 18. I am also unable to agree with the senior counsel for the petitioner that the words "18 Months" entered against the column "Export Obligation Period" on the Advance Licence dated 22nd December, 1999 permitted the petitioner to fulfil the export obligation prior to 22nd December, 1999 also. The said words required the export obligation to be met during 18 months commencing from 22nd December, 1999 and which the petitioner does not even plead. The exports against which the petitioner wants his export obligation under Advance Licence dated 22nd December, 1999 to be fulfilled are stated to have taken place on 16th February, 1999, 29th January, 1999 and 20th April, 1999. 19. Supreme Court as far ba....