AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 892
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....Authorizations which are the subject matter of the impugned order. 2. By an interim order dated 24.08.2016, this Court has granted status quo. Order dated 24.08.2016 reads as under:- Mrs.S.Srimathy, Learned Counsel takes notice for R1 to R3. Mr.S.Gurumurthy, Learned Counsel takes notice for R4. There shall be an order of status -quo prevailing as on date. 3. The petitioner has challenged the impugned decision of the second respondent Policy Relaxation Committee in its Meeting held on 05.04.2016 & 11.04.2016 in Case No.1 bearing F.No.01/94/180/1081/Am10/PC-4/PRC as reflected in the Minutes of the Meeting held on these two days pursuant to an Order dated 28.10.2015 of the Hon'ble Division Bench of this High Court in W.A No. 575 of 2014. 4. By the impugned decision, the second respondent Policy Relaxation Committee in Case No.1 bearing F.No.01/94/180/1081/Am10/PC-4/PRC has rejected the request of the petitioner to revalidate the period of validity of the aforesaid Advance Authorisations. 5. The petitioner has thus also prayed for a direction to the first respondent to direct the third respondent to issue revalidation and enhancement of the value of import entitlem....
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....vance authorizations under the Foreign Trade Policy 2005-09 and the relevant Handbook of Procedure (HBP) was in force till August 28, 2009. 11. The dispute in the present writ petition is confined to the following four Advance Authorizations issued to the petitioner under the Foreign Trade Policy 2004-2009. S.No. Date Advance Authorisation Nos. Validity Period* 24 Months 6 Months Extension ** i) 28.03.07 3510020677 27.03.2009 27.09.2009 ii) 28.03.07 3510020678 27.03.2009 27.09.2009 iii) 28.03.07 3510020679 27.03.2009 27.09.2009 iv) 24.04.07 3510020837 23.04.2009 23.10.2009 (* Para 4.22 of HOP - 2004-09) (** Para 4.22 of HOP 2004-09) 12. Earlier, the petitioner had asked for revalidation and enhancement in the value of the above four Advance Authorisations along with Advance Authorisation No.3510018818 dated 08.06.2006. However, the petitioner gave up its claim for revalidation and enhancement in the value for Advance Authorisation No.3510018818 dated 08.06.2006 in the previous round of litigation before this Court in W.A No. 575 of 2014. The reason for giving up its claim appears to b....
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....sing, SAP by definition is also made of the ERP (Enterprise Resource Planning) software as well the name of the company. SAP system comprises of a number of fully integrated modules which covers virtually every aspect of the business management. Thus, by introduction of the SAP, the applicant's accounting efficiency must have been improved. The software must have giving accurate position of their inventories and pending obligation position against individual Licence. Hence the situation of excess export should had not been arisen. The committee, therefore, was of the view that introduction of SAP cannot be attributed to genuine hardship in fulfilling excess export and not importing eligible quantity within the validity of the Authorisations. The applicant itself stated that they had 23 Advance Licences in operation but could not import only in 5 Licence. This proves itself that SAP was not the reason but it was their failure in systematic and timely monitoring of Licences by the management. Further, the applicant has not submitted any documentary evidence that the SAP was introduced during the validity of these Authorisations and for any inconvenience in implementing of SAP softwar....
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....on also. Therefore, no time is prescribed for obtaining Advance Authorisation in FTP. So far revalidation request is concerned, further six months revalidation is allowed in continuation of the validity of the Authorisation. Therefore, Authorisation holder has to seek further revalidation, on merit, within extendable validity of six months only. Hence, the late cut provision is not applicable in such cases. e. The committee further endorsed the views of Dr.Anup K.PUjari, the then DGFT, taken in the order dated 24 / 29.10.2013 that PRC has not considering any request for revalidation after 2010. The cases cited by the applicant were considered by the committee prior to 2010 only. After 2010, taking into consideration the bad situation of balance of payment and balance of India's trade, the committee decided not to allow further revalidation where exports were made but imports were not made within the validity of Authorisation unless the Authorisation holder was denied / prevented their legitimate benefits due to system error or force majeure or Authorisation lost its validity in the possession of government Agency. The committee has been consistently and uniformly adopting ....
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....The impugned order was decided partly in the light of Foreign Trade Policy 2015-2020 (FTP) read with Handbook of Procedure (HBP) as in force. 20. The petitioner cited difficulties on account of the economic meltdown and global recession during 2008 and 2012 for meeting out its obligations under the Foreign Trade Policy and thus wanted concession in the form of revalidation of the period of export, in the import value under the advance authorisation and other benefits under Para 2.5 of the Foreign Trade Policy 2009-09. 21. Additionally, the petitioner has also blamed its System Application Programme (SAP) systems for the confusions. The case of the petitioner before the second respondent was as under:- i. In view of certain technical problems faced in the newly implemented SAP software system in Applicant's all units across India during the year 2007-09, imports and exports made from the said units against the above said authorization were incorrectly accounted resulting into loss of control over accounting of goods under the said authorizations and ultimately excess exports as well as shortfall in imports occurred inadvertently without the said discrepancies coming t....
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....ance authorizations on technical grounds or otherwise results into heavy loss to the Applicant. x.No limitations specified for filing application under Para 4.21 and 4.23 of the HBP of FTP. 22. The specific case of the petitioner is that the petitioner has discharged the export obligation under the respective Advance Authorizations and has surpassed the quantity and therefore would have been entitled to enhancement in the quantity on account of the exports made. 23. It is submitted that certain technical issues cropped up in the newly implemented SAP software system in all its factories across India during the year 2007-09 resulting in loss of control over the accounting of both imports and exports under the Authorizations resulting in excess exports as well as shortfall in imports which came to the notice of the petitioner belatedly. 24. It is further submitted that the petitioner could not make imports due to the global crisis and economic meltdown between 2007-09 which caused undue delay in servicing the orders placed by the petitioner for raw materials from foreign suppliers who held back their orders partially to withstand in the global market. 25. It is s....
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....s out of 23 Authorizations handled during the period 2007-2009, the petitioner had decided to pursue the claims in respect of five Advance Authorizations initially, but restricted it to four. 32. It is submitted that in view of the petitioner's inability to file an application seeking enhancement / revalidation either before the expiry of the Advance Authorization or within the additional period of 6 months provided for revalidation under Paras 4.21 and 4.23 of Handbook of Procedures, the petitioner had submitted an application under Para 2.5 of the Foreign Trade Policy before the Policy Relaxation Committee (PRC) on 16.02.2011 seeking relaxation of the provisions of the Policy or Procedures on the ground of genuine hardship faced by the petitioner and grant revalidation of the said Authorizations for 6 months as well as enhancement of import quantity in commensurate with excess exports which were rejected by them on 02.06.2011, on the specious ground that it was an internal management issue and not a genuine hardship warranting relaxation. 33. The petitioner submitted another application in respect of each of the 5 Authorizations before the Policy Relaxation Committee (PRC) ....
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....hird respondent to keep the proceedings / redemption of all the impugned 5 advance authorizations in abeyance pending disposal of their application filed with the Policy Relaxation Committee (PRC) as the petitioner had not only fulfilled Export Obligation prescribed in all 5 authorizations but also made excess exports and awaiting enhancement / revalidation of the same and that their request for production of original authorization together with all proof of export documents for having fulfilled Export Obligation would prevent them from claiming revalidation of the said authorization for import of duty free inputs commensurate with excess exports made under the said authorization. 38. It is submitted that the petitioner, however, sent copies of the documents together with details of quantum & value of exports made in fulfillment of Export Obligation to the third respondent. Therefore, it is submitted that there can be no doubt that the petitioner had actually affected the exports claimed and this has never been contested. 39. It is submitted that their appeal filed before the first respondent was again rejected by the second respondent vide its order dated 05.02.2013 merely r....
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....her one, dated 28.12.2011, which calls for consideration in terms of the paragraph 2.5 of the Policy." The above Para 2.5 reads that "Any request for relaxation of the provisions of this Policy or of any procedure, on the ground that there is genuine hardship to the applicant or that a strict application of the Policy or the procedure is likely to have an adverse impact on trade, may be made to the Director General of Foreign Trade for such relief as may be necessary. The Director General of Foreign Trade may pass such orders or grant such relaxation or relief, as he may deem fit and proper". 45. He further submits that the second respondent has considered the petitioner's claim over difficulties faced by them in accounting exports & imports under the impugned authorization due to introduction of SAP vide their letter dated 16.02.2011 albeit unsatisfactorily, but brushed aside the same by stating that the introduction of SAP cannot be attributed to genuine hardship in making excess export and not importing eligible quantity within the validity of the authorization and no proof was adduced by the petitioner for having introduced SAP software system and faced difficulties during t....
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....the Regional Authority (RA) concerned as well as did not apply for 'revalidation' within extendable validity of six months vide Paras D(c) and D(d) therein. Curiously, the respondent claims for the first time in the impugned order (Para D) that the extension of authorization had been obtained by the Licensee from the Regional Authority (RA) for 6 months which is incorrect as no such extension had been sought to be obtained by the petitioner. 51. The learned counsel for the petitioner submits that the above contention of the second respondent demanding filing of application within the validity of Authorization or within the extendable validity of six months has no basis as the said Paras 4.21 and 4.23 of the Hand Book of Procedure of Foreign Trade Policy do not specify any period within which the Exporter / Importer is required to apply for 'enhancement' and 'revalidation'. 52. The learned counsel for the petitioner submits that the second respondent denied the applicability of their orders in the following cases to the petitioner's case wherein they had granted revalidation of licenses in respect of applications filed within 2 years or within a reasonable period from the date....
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....t commensurate with the excess exports made under the impugned 4 advance authorisations as admissible under Para 4.21 of Handbook of Procedures of Foreign Trade Policy by imposing a cut in terms of Para 9.3 of Handbook of Procedures. 56. It is submitted that the second respondent denied the request of the petitioner to consider their import entitlement with a late cut as provided under the above Para 9.3 of Handbook of Procedure (HBP) merely endorsing the views of the then Directorate General of Foreign Trade (DGFT) stated in the earlier order dated 24.10.2013 /29.10.2013 that it is applicable only in the case where the time limit for submission of any application is prescribed and that such time limit is provided for post shipment scheme, export incentives scheme and drawback scheme under Foreign Trade Policy (FTP). 57. It is further submitted that the above reasoning of the second respondent merely endorsing the views of the first respondent is unsustainable when the said order was set aside by this Court vide order dated 28.10.2015 in W.A.(MD) No.575 of 2014 and that the reasoning of the second respondent of restricting the applicability 'late cut' provided under Para 9.3 ....
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....ld be granted by imposing a late cut of 10% in terms of Para 9.3 of Handbook of Procedure (HBP) of Foreign Trade Policy (FTP). 61. The petitioner opted for 'Advance Authorization' Scheme, under the FTP. Under the FTP read with HOP, import the raw materials without payment of all duties of customs which are required for the manufacture of final product meant for export and is obligated to export the final product for the 'value', 'quantity' and 'period' as specified in the said Advance Authorization issued by the Directorate General of Foreign Trade (DGFT) Authority with a validity of 24 months besides achieving the 'value addition' as fixed by the said Authority. 62. It is also submitted that the Advance Authorization Scheme provides for 'Enhancement or Reduction" in the value of Authorization' which may be claimed by the petitioner either before or after the exports as well provides for 'Revalidation of Authorization', whereby, the petitioner shall seek revalidation of the Authorization issued to him for additional six months from the date of expiry of 24 months enabling the petitioner to import and export under the said authorization during such extended period. 63. It i....
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.... material against exports already made within the validity of the authorization (24 months). The petitioner has brought in valuable foreign exchange into the country and has acted conscientiously in the matter of fulfillment of export obligations and in fact, exceeded the export obligations entitling it to seek enhancement of import in respect of three of the four authorizations. 68. It is submitted that the petitioner's genuine hardship (both in terms of SAP issues peculiar to it as well as the global recession/slowdown which affected the industry in toto) ought to have resulted in the Directorate General of Foreign Trade (DGFT) allowing the review and not the Policy Relaxation Committee (PRC) reiterating the Directorate General of Foreign Trade's (DGFT's) earlier rejection. 69. It is further submitted that the petitioner having identified the exports with the relevant Advance Authorizations was estopped from claiming any other benefits under the Duty Drawback Scheme or the DEPB (Duty Entitlement Passbook) Scheme and the rejection by the Policy Relaxation Committee (PRC) would result in a conscientious exporter being deprived of the import incentives on venial ground. 70.....
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....e Policy for the year 2004-2009, the Director General of Foreign Trade may also in public interest exempt any person or class or category of person from any of the provisions of the policy or any procedure and may, while granting such exemption, impose such conditions as they may deem fit. 77. It is submitted that such request ought to be considered only after consulting the Norms Committee in respect of Chapter-4 (excluding any provision relating to the Gem and Jewellery Sector) and the EPCG Committee if the request was in respect of imports under Chapter-5 of the Foreign Trade Policy / Hand Book of Procedure. 78. The learned counsel for the petitioner further submits that the Foreign Trade Policy which was in force from 2009-2014 altered the language and therefore, the aforesaid amendment was not applicable to the facts of the present case. 79. That apart, it is submitted that there was an economic meltdown and crisis the world over. It is submitted that though the petitioner was able to discharge an obligation based on the earlier export orders booked, the petitioner was not able to utilise the Advance Authorisations as demand for the export products reduced drastically....
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....o the PRC for an appropriate extension of export obligation period to make up for the lost extension period of 1 ½ years. Mr.Ganesh argued that the petitioner should be granted period of five years with effect from July 2010 till July 2015 and all exports made by the petitioner upto July 2015 should be taken into account towards discharge of the petitioner's export obligations. To this, the petitioner was entitled as a matter of legal right irrespective of exercise of discretionary indulgence by the PRC in favour of the petitioner. 12. Mr. Ganesh argued that with effect from 2009, the Import Controlling Authority changed the alphanumeric numbering of import licenses and also changed the software used by them .WP(C) NO.11198/2015 for recording the fulfilment of export obligations, as a result of which, the system and software of the respondent did not accept and record the earlier license numbers given to licenses issued prior to 2009 in connection with the shipping bills covering export made in relation to the licenses. These exports could not be considered for no fault of the petitioner, but only because of the software. Mr. Ganesh strenuously argued that the p....
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....ports have been certified by the Customs and the Excise Departments which are a limb or wing of the Central Government of which the respondents are a part. 52.Mr. Ganesh referred to the pleadings in the writ petition and submitted that paragraph 4.20 of the Handbook of Procedure 2004-2009 gives the facility of clubbing of licenses only for the purpose of redemption/regularization without imposing any restriction based on the period to which the licenses relate. Paragraph 4.20 expressly provides that the licenses may relate to different periods but the only requirement is that the Customs Exemption Notification in question must be similar. That requirement was fulfilled in the present case. PRC had not suggested that the requirement had not been fulfilled. The petitioner is thus entitled to clubbing of licenses for the purpose of redemption and/or regularization, as argued by Mr. Ganesh. The finding of the PRC that clubbing of licenses would be allowed only if the licenses or Authorizations had been issued within a span of 36 months and the last shipment was within 48 months of the date of the first Licenses/Authorization is neither to be found in paragraph 4.20 of the Hand....
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....ion. 85. The learned counsel for the petitioner has drawn attention to paragraph 9.13 of the Handbook of Procedure for the relevant Foreign Trade Policy 2004-2009, in terms of which it is submitted that the petitioner is also entitled to an extension of time subject to payment of 10% late cut fee. 86. Finally, the learned counsel for the petitioner submits that though the matter was referred back to the DGFT, the DGFT, obligated to perform the duties, referred the matter to Policy Review Committee, which is not warranted . It is submitted that even otherwise the impugned order has to go as it is contrary to the order passed by the Division Bench of this Court in W.A.(MD).No.575 of 2014, vide order dated 28.10.2015. 87. It is submitted that the Ministry of Commerce and Industry, Government of India has been notifying the Foreign Trade Policy (FTP) from time to time outlining the Indian Government's policy in accordance with the Foreign Trade (Development & Regulation) Act, 1992 for promoting Exports & Imports to boost the economy of the Country and that the Directorate General of Foreign Trade (DGFT) Organization attached to the said Ministry headed by the Director General ....
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....e the Policy Relaxation Committee rejected the request of the petitioner, DGFT called for export document as per para 4.24.1 of the Hand Book of Procedure 2004-2009, on 08.06.2011 and 12.02.2012. 95. However, the petitioner failed to produce the called for documents and therefore a show cause notice dated 31.08.2021 was issued calling for personal hearing on 14.09.2012 to explain the reason for non-submission of documents. 96. None appeared for personal hearing, but submitted a letter on 14.09.2012 stating that the petitioner was once again approaching the Policy Relaxation Committee. 97. As far as applicability of para 2.5 of the Handbook of Procedure 2004-2009 is concerned it is submitted that the Policy Relaxation Committee deliberated the petitioner's case at length as to the applicability of this para of FTP and has rightly rejected the request of the petitioner. 98. It is submitted that a bare reading of the para 2.5 of the Foreign Trade Policy and the paragraph 2.58 of the subsequent Foreign Trade Policy make it clear that in public interest relief can be granted by the Director General of Foreign Trade by way of exemption, relaxation or relief after consulting P....
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.... software providing company. Therefore, these submissions are not accepted by the committee. (b)Applicability of para 2.8 of the Handbook of Procedure 2004-2009: It is submitted that as per para 2.8 of the HBP every Authorisation is valid for prescribed period and shall contain such terms and conditions as may be specified by the Regional Authority which may include: a.Quantity, description and value of the goods. b.Actual User Condition. c.Export Obligation. d.Value Addition to be achieved and e.Minimum export/import price" (c) In view of these conditions and also the enhancement is connected with the validity period of Authorisation, the petitioner's request, is not a bonafide one was rejected after careful consideration of grounds of request as per law. (d) Besides , Revenue aspect has been kept in mind in view of the burgeoning Current Account Deficit (CAD) and therefore allowing further imports that too, after two years , would cause irreparable damage to the overall balance of payment position of the Country. 101. It is further submitted that although no time limit has been prescribed for filing the re....
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.... Petitioner is liable for all penal action contemplated under FTP, more specifically under the Foreign Trade (Development & Regulation)Act, 1992 as amended. The petitioner takes shelter in litigation proceedings by misusing the due process of law. Therefore, in the absence of export documents to be submitted to the office of the Joint Director of Foreign Trade, Madurai within the prescribed time, the Petitioner does not deserve any sympathy whatsoever even though they claim to have fulfilled the export obligation undertaken by them. 106. Applicability of Paras 2.12,4.21,4.23 and 9.3 of the Handbook of Procedure 2004-2009: ii. Enhancement in value and quantity of Authorisation is allowed only in situation where an exporter received export order for higher quantity than stipulated in the Advance Authorisation during its validity. Exporter for some reason may not have time to obtain a new authorization .In that case, he can approach the Regional Authority to allow enhancement in quantity and value of the valid Authorisation .Second situation could be that while making shipments, if a buyer suddenly enhanced the requirement and placed additional order. In that case , export....
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....by the Rule. For the default in submitting the documents of export for discharge of export obligation undertaken by them, the petitioner is liable for all penal action contemplated under FTP, more specifically under the Foreign Trade (Development & Regulation)Act,1992 as amended. The petitioner takes shelter in litigation proceedings by misusing the due process of law. Therefore, in the absence of export documents to be submitted to the office of the Joint Director of Foreign Trade, Madurai within the prescribed time, the petitioner does not deserve any sympathy whatsoever even though they claim to have fulfilled the export obligation undertaken by them. 109. It is submitted that enhancement in value and quantity of Authorisation is allowed only in situations where an exporter receives export order for higher quantity than stipulated in the Advance Authorisation during its validity. Exporter for some reason may not have time to obtain a new authorization .In that case, such an exporter can approach the Regional Authority to allow enhancement in quantity and value of the valid Authorisation. 110. Second situation could be where while making shipments, the buyer enhances the re....
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....eign Trade Policy and the relevant Hand Book of Procedure are issued once in five years. 116. Under para 4.1.3 of the Foreign Trade Policy 2004-09, holder of a holder of an Advance Authorisation is allowed to import inputs dutyfree, which were to be physically incorporated in the export product (making normal allowance for wastage). 117. Imports under Advance Authorisations were exempted from payment of basic customs duty, additional customs duty, education cess, antidumping duty and safeguard duty, if any. To this effect, notifications were issued under Section 25 of the Customs Act, 1962 and amended from time to time. 118. As per para 4.1.10 of the Foreign Trade Policy 2004-09 Foreign Trade Policy ( FTP) Advance Authorisation could also be issued for annual requirement. Status Certificate Holders and other categories of exporters having passed export performance for a period of two years preceding were also entitled for Advance Authorisation for annual requirement. 119. What the petitioner seeks is a admixture of all which is impermissible. 120. As per paragraph 2.3 of the Foreign Trade Policy, the decision of the first respondent DGFTis final. It reads as under:- ....
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....ok of Procedure, a Licence/ Certificate/Authorisation/Permission may be revalidated on merits by the Regional Authority concerned, which issued Licence/Certificate/Authorisation/ Permission, for a period of 6 months reckoned from the date of expiry of the validity period. 129. Question of revalidation of an Advance Authorisation would arise only if such application is filed within 6 months from the date of expiry of the Advance Authorisation as is evident from a reading of Para 4.23 of the HOP. Paragraph 4.23 Handbook of Procedure before and with effect from 27.8.2009 are reproduced below for the comparison:- Paragraph 4.23 Handbook of Procedure before 27.8.2009 under the Foreign Trade Policy 2004-09. Paragraph 4.23 Handbook of Procedure with effect 27.8.2009 Foreign Trade Policy 2009-14. Revalidation of Authorisation The Regional Authority may consider a request of the original authorization holder and grant one revalidation for a period of 6 months from the date of expiry of the original authorization. The request(s) for revalidation of authorization shall be made in the form given in 'Aayaat Niryaat Form Revalidation of Authorisation (a)RA may consider a req....
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....cy cannot be pressed for condoning the delay. Failure to file such application also cannot be condoned and overlooked by pressing Paragraphs 2.5 and 2.58 of the respective Foreign Trade Policy. Such applications even if filed belatedly can be entertained only within the time line stipulated in Paragraph 9.3 of the Policy as it stood between 2009-2014/2009-14. 137. As per the provisions for the Handbook of Procedures of Foreign Trade Policy 1992-97, the application for revalidation was required to be made within a month of the expiry of the license (for initial period) or before the expiry of license (later period). Subsequently, these time limits prescribed for filing application for Enhancement/Reduction in the value of Advance Authorization as well as for Revalidation of Advance Authorizations have been removed under Paras 4.21 and 4.23 respectively under the Handbook of Procedures issued under the respective respondent of Foreign Trade Policy. 138. Therefore, it is not permissible. Thus, the application filed on 16.02.2011 was hopelessly time barred.Public Notice No.2/(PN) 1997-2002, dated 31.03.2001 referred to by the petitioner is also not relevant. It was issued in the ....
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....ign Trade Policy 2004-09. Paragraph 4.21.1 Handbook of Procedure with effect 27.8.2009 under the Foreign Trade Policy 2009-14. Request for prorata Enhancement in Value and Quantity may be made either before or after exports. In such cases where there is a change in SION prior to export of said product, pro rata enhancement shall be given after calculating entitlement on revised SION. Paragraph 4.21.3 Handbook of Procedure before 27.8.2009 under the Foreign Trade Policy 2004-09. Paragraph 4.21.2 Handbook of Procedure with effect 27.8.2009 under the Foreign Trade Policy 2009-14. The application for the enhancement / reduction in the value of authorization shall be made in 'Aayaat Niryaat Form" of the Handbook of Procedure (Vol 1). The application for the enhancement / reduction in the value of authorization shall be made in ANF 4E. 141. Though Paragraph 4.21 of the relevant Handbook of Procedure issued under the respective Foreign Trade Policy does not provide for any time limit for filing such application, it has to be construed that such application can be entertained only if the advance authorisation was alive. Further, under para....
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....er 6 months from the Prescribed date of submission but not later than One year from the prescribed date 5% 3 Application received after 12 months from the Prescribed date of submission but not later than 2 years from the prescribed date. 10% 145. Paragraph 9.13 of the HOP which states DGFT may, on his own or otherwise, call for records of any case pending with or decided by an officer subordinate to him or an officer of any EPC/FIEO including a Group/ Committee of officers nominated, appointed or authorised by him and pass such orders as he may deem fit is also not relevant. Claim for Exemption from the Policy / Procedure under 2.5 of 2009-14 Policy and later 2.58 of 2015-2020 is without merits. 146. The application was filed on 16.02.2011 for the first time after the extension of two years. Thus, the application was beyond the limitation. Paragraph 9.3 of the Foreign Trade Policy therefore cannot come to the rescue of the petitioner. PERIOD FOR DISCHARGING THE EXPORT OBLIGATION: 147. Period of export obligation (EO) under an Advance Authorisation commences from the date of issue of Authorisation, unless otherwise specified. Export....
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....position fee of 2% of the duty saved on unutilized imported items as per the authorisation. 151. A further 6 month has been provided subject to payment of composition of fee of 5% of the duty saved on the unutilized imported items as per the authorisation. 152. In the case of the first three Advance Authorisation, the normal period of 24 months for discharging the export obligation expired on 27.3.2009 during the currency of the Foreign Trade Policy 2004-2009. In the case of the last Advance Authorisation, the normal period of 24 months for discharging the export obligation expired 23.4.2009 during the currency of the Foreign Trade Policy 2009-2014. 153. The 1st grace period of 6 month extension for discharging the export obligation expired on 27.09.2009 for the first three advance authorisation. The 1st grace period of 6 month extension for discharging the export obligation expired on 23.10.2009 for the last advance authorisation. As per sub paragraph -2 to paragraph 4.22.1 a further grace period of 6 months is prescribed. It reads as under:- Request for a further extension of six months may be considered by the Regional Authorities subject to payment of composit....
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....th interest at the rate of 15% p.a. thereon; and b) an amount equivalent to 3% of the CIF Value of unutilized imported material through a TR in the authorised Branch of Central Bank of India indicating the " Head Account ; 1453, Foreign Trade and Export Promotion and minor Head 102". However, the provisions of this sub paragraph shall not be applicable if the unutilized imported material was freely importable on the date of import. (ii) If the export obligation is fulfilled in terms of quantity but Cases of bonafide default in fulfillment of EO may be regularized by RA as under:- i)If EO is fulfilled in terms of value, but there is a shortfall in terms of quantity, the Authorisation holder shall, for regularization, pay:- a) To customs authorities, customs duty on unutilized value of imported/indigenously procured material along with interest as notified; however, for the customs duty component, the authorization holder has the option to furnish valid duty credit scrips issued Chapter 3 of FTP and DEPB ; and b) an amount equivalent to 3% of the CIF value of unutilized imported material through a TR in authorized branch of Central Bank of In....
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....ch conditions as he may deem fit. Such request may be considered only after consulting Norms Committee (NC) if the DGFT may pass such orders or grant such relaxation or relief, as he may deem fit and proper, on grounds of genuine hardship and adverse impact on trade. DGFT may, in public interest, exempt any person or class or category of persons from any provision of FTP or any procedure and may, while granting such exemption, impose such conditions as he may deem fit. Such request may be considered only after consulting committees as under: Exemption from Policy/ Procedures DGFT may in public interest pass such orders or grant such exemption, relaxation or relief, as he may deem fit and proper, on grounds of genuine hardship and adverse impact on trade to any person or class or category of persons from any provision of FTP or any procedure. While granting such exemption, DGFT may impose such conditions as he may deem fit after consulting the Committees as under: 2004-2009 2.5 of F.T.P 2009-2014 2.5 of F.T.P. 2015-2020 2.58 of F.T.P. S.No. Description Committee (a) Fixation/ modification of product norms under ....
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.... with software company which had implemented SAP for the petitioner. Therefore, these submissions have been rightly rejected by the committee. 164. Under Paragraph 2.58 and 2.5 of the Foreign Trade Policy, the DGFT may pass such orders or grant such relaxation or relief, as he may deem fit and proper, on grounds of genuine hardship and adverse impact on trade. 165. The facts on record indicate that the petitioner did not have any difficulty in importing the goods under the respective Advance Authorisations during the period when there was economic recession. 166. On the other hand, it is the case of the petitioner that it has surpassed the export obligation under taken during the period though the details of such exports are not forthcoming in the representations filed by the petitioner. The petitioner wants not only revalidation but also enhancement in the entitlement to import goods duty free under these Advance Authorisation which have expired long before. The global recession did not pose any difficulty or constrain the petitioner in any manner in discharging the export obligation under the respective Advance Authorisation. 167. As per paragraph 4.1.14 of Foreign Tr....
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.....23 of Handbook of Procedure, the petitioner could have not only asked for extension of time for discharging the Export Obligation by one year extra i.e. 6 months + 6 months in terms of para 4.22 of the Handbook of Procedure but also for enhanced value of Authorisation as per Para 4.21 of Handbook of Procedure. 174. Even if there was a bonafide default, it could have been regularized only in terms of Para 4.28 of Handbook of Procedure. Questions of pressing 9.3 of Handbook of Procedure in favour of the petitioner would not arise if the petitioner did filed application within the period stipulated therein. The expressed prescribed date would be two months from the date of expiry of the Advance Authorization on 27.03.2009 for the first three Advanve Authorisation all dated 28.06.2007 & 23.04.2009 for the last Advance Authoisation dated 24.04.2007. 175. Para 2.5/2.58 of Foreign Trade Policy 2005-09 and 2009-14/2015-20 as the case may be, cannot be applied as the global melt down and technical glitch on account of SAP, implemented by the petitioner did not result in loss of Export Orders even according to the petitioner. The averment in the affidavit itself shows that despite glo....