AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (10) TMI 565
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.... purpose of compliance with export obligation. This relief is sought because the authorisation issued in March, 2009 casts certain obligations in relation to this export and as the facts will reveal that has not been discharged. 2 Then, similar relief of issuance of a writ of certiorari is sought in relation to orders passed on 3rd September, 2014, 9th June, 2015, and prior thereto on 16th April, 2015. 3 The first petitioner is a public limited company and the second petitioner is an Indian citizen and its Director. The respondents to this writ petition are the authorities under the Foreign Trade (Development and Regulation) Act, 1992 (for short "Foreign Trade Act"). 4 The petitioners complain that they are a small scale industry / unit. They have been in the business of manufacturing and export of pharma products and cosmetics since last 15 years. They are a recognised Export House and that recognition is granted by the Ministry of Commerce, Government of India. They have won several awards for export performance. The petitioners then point out that the business is very competitive. They face tough competition from countries like China and Turkey. Therefore, there is a fluctuat....
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....t documents in relation thereto are annexed as Annexures H, I and J. The validity of the authorisation of March, 2009 was till March, 2011. Then the petitioners realised during the course of the present proceedings that the Director General of Foreign Trade had issued a public notice whereby the export obligation period of advance authorisation was increased from 24 months to 36 months. Yet, it is their complaint, that the 2009 March authorisation stipulates a period of 24 months. The public notice dated 26th February, 2009, is relied upon and based on that it is submitted that on the enquiry in November 2011, the petitioners were informed by the officers that it is an error which can be rectified on an application being made. That is how the petitioners resumed exports under the March 2009 authorisation from 17th November, 2011. Then, amendment of 23rd January, 2012, amending the validity from 24 to 36 months is relied upon and the petitioners' case is that the validity and export obligation of March 2009 authorisation was till March, 2012. The petitioners, therefore, claim that due to the error on the part of respondent No.4, they were unable to take the benefit of exporting ....
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....ew of its standing export orders on account of the confusion in the validity of the export obligation period. The petitioners, therefore, furnish some details in paragraph 4.18. They also rely upon certain obligations under the advance authorisation first issued and the material in that regard is set out in paragraphs 4.19 and 4.20. They submit that there are two promises made to petitioner No.1. Firstly, that the exports made under a particular authorisation would be taken into consideration while calculating the fulfillment of the export obligation of that authorisation and that so long as the petitioner No.1 fulfills the conditions set out in paragraph 4.20 of the Handbook of Procedures 2009-2014, their application for clubbing of two or more authorisations would be accepted. The petitioners submit that they have fulfilled the necessary conditions set out in this paragraph of the Handbook of Procedures. It is in these circumstances that it is submitted that they acted upon a promise to their detriment and irreversably changed their position. The petitioners rely upon the first application for clubbing filed on 9th March, 2013 and its rejection on 29th November, 2013. Then, it wa....
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.... fulfillment of the export obligation for redemption of the bank guarantee / letter of undertaking in respect of the March 2009 authorisation. This could not have been done, according to the petitioners, for their request for clubbing was pending. If the refusal order dated 16th April, 2015, is in respect of the July 2008 authorisation, then, the documents were duly submitted by the petitioners under the cover of the letter dated 15th October, 2012. Yet, without prejudice, they addressed a letter dated 10th July, 2015, requesting the respondent No.4 to rescind the refusal order. They pointed out that the clubbing application was firstly pending and secondly it was allowed, though conditionally. The petitioners were of the opinion that this conditional clubbing order can be challenged before the appropriate forum. Annexure-W is a copy of this order. 11 The petitioners submit that the 16th April, 2015 refusal pertains to a show cause notice dated 12th May, 2011, which is in connection with the March 2009 authorisation, but this show cause notice was never received. They did not participate in the proceedings pursuant to the show cause notice. Yet, such without prejudice contentions ....
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....e Handbook of Procedures and the Foreign Trade Policy. In paragraph 5 of the affidavit-in-reply, reliance is placed on paragraph 2.15 of the Foreign Trade Policy 2015-2020 and which contains a similar stipulation as paragraph 2.11 of the Foreign Trade Policy of 2009-2014. If the authorisation holder violates any condition of such authorisation or fails to fulfill export obligation or fails to deposit the requisite amount within the period specified in the demand notice he shall liable for action in accordance with the Foreign Trade Act. He can also be held liable under any other law for the time being in force. The power to grant exemption whether absolute or conditional on account of genuine hardships and adverse impact on trade to any person or commission or category of persons is available. That is to be exercised in public interest. While granting the exemption the DGFT has the power to impose conditions as he may deem fit after consulting the Policy Relaxation Committee. The relaxation of policy is not a matter of right. The relaxation is granted on case to case basis and strictly on merits, taking into consideration genuine hardship and adverse impact on trade. As far as the ....
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....ioner appeared before the Committee and after considering the oral and written submissions, a speaking order was passed on 29th June, 2015, rejecting the request and that decision was communicated on 30th June, 2015. In these circumstances, it is submitted that when the petitioners admitted the default and sought relief in the above manner, it has no vested right and thereafter cannot turn around and challenge the condition that is imposed in larger public interest. 16 The petitioners filed a rejoinder affidavit but the essential contention therein is based on the Foreign Trade Policy 2009-2014. It is in the above circumstances that there is no provision therein for imposing any condition. The petitioners, therefore, reiterate the contents of the petition and also rely on two decisions of this Court, more particularly referred to at page 162 of the paper-book to submit that principles of natural justice have not been followed. 17 On the above material, we have heard the learned counsel appearing for the respondent as well and with the assistance of the counsel appearing for both sides, we have perused the writ petition, the annexures thereto and all the affidavits. 18 We are in ....
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....xemption/relaxation of the conditions. One decision of the Policy Relaxation Committee cannot be quoted as a precedent in another case as the extent and genuineness of hardship may vary from case to case. Policy relaxation by its very nature is for relaxing normal policy / procedural provisions and cannot be claimed as of right. The Policy Relaxation Committee has extensively considered the case of the petitioner. It found that it got 51 months effectively for completing the export obligations, but the commitment made was not honoured. It is in these circumstances that the clubbing applications were considered and the condition was imposed restricting the compliance to 48 months. Thus, exports effected upto 48 months from the date of issuance of the earliest authorisation for clubbing the authorisations came to be imposed. We do not think that such an exercise which by its very nature is a matter of discretion so as to enable the defaulters like the petitioners to fulfill their obligations belatedly, can be challenged on the ground that there is a condition imposed in the relaxation or exemption. The above conclusion of the Committee cannot be said to be perverse or based on no mat....
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....Relaxation Committee has in its meeting revealed as to how it considered the applications for relaxation. It also considered as to how the exercise of clubbing at the instance of the petitioners firstly enabled the petitioners to prolong the period for fulfillment of the export obligation and secondly, that the petitioners were aware that the first of such authorisation can be taken into consideration for relaxing the period within which the export obligation has to be completed. This enables imposition of a condition while granting relaxation. We do not think, therefore, that the reliance on paragraph 6 of the judgment in Kranti Associates (supra) and in abstract can be of any assistance to the petitioner. 22 In the case of Shivsagar Vegetarian Restaurant v. Assistant Commissioner of Income Tax, Mumbai, reported in 2008 (232) E.L.T. 780, once again the basic rule of natural justice requiring recording of reasons in support of a conclusion has been considered. For self-same reasons, we do not think that the impugned order is vitiated on account of it being unreasoned or not assigning any reasons at all. It is equally well settled that sufficiency and inadequacy of reasons is not a....