TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 892
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....er 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 entitlement in respect of the above mentioned Advance Authorizat....
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....ant 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 be the non-utilization of the said Advance Authorisation. 13. To appreciate the dispute, relevant portion of the impugned....
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.... 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 software in the concerned unit, they had taken up the issue with software providing company. Therefore, these submissions are not accepted by the committee. b.The said five Authorisation....
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.... 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 this practice since November, 2010. The applicant could not cite any case in which request for revalidation was considered after 2010. Hence, the case of the applicant cannot be placed on similar footing. f.....
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....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 the notice of Applicant. ii.In view of global crises of meltdown in 2007-09 which affected Textile Industries across Asian region, most foreign suppliers from Asian countries from whom the Applicant purchased their raw materials, had held....
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....der 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 submitted that the petitioner made such excess exports specifically against the said Advance Authorization by indicating the Authorization Number in the Shipping Bills of Export and that the petitioner had no other option to avail the benefit against such excess export except seeking 'Enhancement' and 'Revalid....
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....efore 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) on 28.12.2011 which too was rejected by the Policy Relaxation Committee (PRC) on 11.09.2012 reiterating the earlier decision of the Policy Relaxation Committee (PRC) and therefore, the petitioner submitted their appeal on 10.10.2012 before the first respondent requesting to review the rejection order passed by the second res....
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.... 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 reiterating the earlier order which was challenged by the petitioner before this High Court in W.P.(MD)No.2865 of 2013 and W.A.(MD) No.229 of 2013, wherein, this Court passed a common order dated 29.07.2013 remitting the matter to the first respondent to pass fresh orders. 40. It is further submitted that the petitioner's representation and request made before the....
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....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 the relevant period. 46. The learned counsel for the petitioner further submitted that the second respondent, however, completely failed to consider the other claims of the petitioner made in their letter dated 28.12.2011 regarding genuine hardship caused to them on account of global crisis of meltdown during 2007-2009 which caused undue delay in servicing the orders placed b....
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....tension 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 of expiry of licence taking into account that the exporter had fulfilled the EO within the valid Export Obligation Period. Sl. No. Name of the Firm Case No., /PRC Meeting No./ Date Licence issued period 1 Indian Steels and Allied Products, Chennai Case No.10 Meeting No. 11/AM07 Date: 15.02.2007 July 2003 2 2 Claris Lifesciences Ltd Ahmedabad Case No.10 Meeting No. 11/AM....
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....(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 of Handbook of Procedure (HBP) only to post shipment scheme / export incentives scheme / drawback scheme under Foreign Trade Policy (FTP) which has no basis in as much as the Para 9.3 specifically states 'any application' as well as the said Para 9.3 has been provided under Chapter 9 which deals with 'Miscellaneous Matters" covering all the situations and therefore there is no bar in applying the 'late cut' provided under Para 9.3 of ....
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.... 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 is further submitted that while the petitioner had obtained several Advance Authorizations from time to time from the third respondent based on their export orders and re-deemed the said Authorizations after fulfillment of the conditions specified therein including the Export Obligation regularly, the petitioner is concerned with the 5 Advance Authorizations obtained from the third respondent for the import of Polyester Filament and Polyester Stap....
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....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. It is also submitted that when the petitioner was willing to have the benefits reduced by imposition of late cut in terms of Para 9.3 of the Handbook of Procedure (HBP) of Foreign Trade Policy (FTP) within the time stipulated therein, it was not fair to deprive the petitioner of the benefits therein merely because of the passage of time. 71. It is submitted that the absence of why the petitioner was denied the benefits of relaxation without any acceptable ex....
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....y 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 from 2009-2012 by which time these Advance Authorisations had expired. 80. It was submitted that these Advance Authorisations are valid for a period of 24 months from the date of issue and with a grace period of another six months in terms of Public Notice No.2/(PN) 1997-2002, dated 31.03.2001. 81. It is further submitted that under similar circumstances in the case of the following exporters, similar benefit has been granted to the following persons:- 11.1.M/s.Masturlal P....
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....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 petitioner is entitled to have these exports taken into consideration, as a matter of legal right even without exercise of discretionary indulgence by PRC in favour of the petitioner. 13.Mr. Ganesh argued that a large number of other exporters, including in particular, those who have made their exports on free shipping bills had applied to PRC for relaxation in the form of directions that the export made on such shipping bills should be considered towards discharge of the export obligations even though the shipping bills were free shippi....
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....hat 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 Handbook. Rather paragraph 4.20.5 of the Handbook provides: "4.20.5. Notwithstanding the provisions of para 4.20.3 and 4.20.4 above, Clubbing of all expired licences may also be permitted provided all the expired licenses have been issued during the Exim Policy period of 1992-1997 & 1997-2002 i.e, 1st April, 1992 to 31st March, 2002." 53.As argued by Mr. Ganesh, even though the respondent had filed lengthy and prolix affidavit, they had not attempted to counter the correctness of the specific pleadings in paragraph 13 of the writ petition. 54.From the impugned order of the PRC, i....
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....r 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 of Foreign Trade is involved in regulating and promoting the Foreign Trade through regulations as a facilitator besides notifying Foreign Trade Policy (FTP) and the Handbook of Procedures (HBP) for implementing the said Policies. 88. It is submitted that Foreign Trade Policy (FTP) provides various schemes for the promotion of Exports which includes 'Duty Exemption & Remission Schemes' specified under Chapter 4 of Foreign Trade Policy (FTP). Duty Exemption scheme comprises Advance Authorization and Duty- Free Import Authorization which enable duty free import of inputs required for export production. 89. The learned counse....
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....dbook 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 PRC, on ground of genuine hardship and adverse impact on trade. 99. It is therefore submitted that the relaxation/ exemption form the Policy or the procedure is not a matter of right. For seeking relaxation, the petitioner was required to establish genuine hardship and/or prove beyond reasonable doubt adverse impact on trade. In this case, the petitioner has failed to establish with concrete ground of genuine hardship or adverse impact on the trade. 100. It is submitted that the argument of the learned counsel for the petitioner that the petitioner faced genuine hardship due to introduction of SAP software in all their units across India during....
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....titioner'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 request of revalidation, it can reasonably be understood that for a relief of six months validity, a request has to be filed within the validity of the Authorisation. Or, at least the Petitioner could have come within the same licensing period. 102. In this case , all their Authorisations had been issued during the licensing period of April-March 2007.They could have filed the request during this period. This was not done. Where as , they had submitted the request belatedly after expiry of three licensing periods i.e AM-2008,AM-2009,AM-2010. 103. Therefore , the policy parameters made applicable during AM-2007 cannot be applicable and extended to for the licensing period AM-2011.Hence , the request for revalidati....
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....ceived 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 , exporter may make excess shipment of required quantity without approaching the Regional Authority for enhancement. To deal such situations, para 4.21 of HBP provides enhancement in quantity and value of the Authorisation. However, the Authorisation Holder must apply to the Regional Authority concerned within the validity of such Authorisation. Enhancement in quantity and value of Authorisation will not serve any purpose, if it is not obtained within the validity of the Authorisation. In this case, the applicant did not approach the Regional Authority concerned for doing so. There fore he has no merit for seeking enhancement after expiry of the said 5 Authorisations. iii. The submission of the petitioner in it's notes of submission B (ii) & ....
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....ions 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 requirement and places additional orders. In that case, exporters may make excess shipments of required quantity without approaching the Regional Authority for enhancement. To deal with such situations, para 4.21 of HBP provides enhancement in quantity and value of the Authorisation However , the Authorisation Holder must apply to the Regional Authority concerned within the validity of such Authorisation. Enhancement in quantity and value of Authorisation will not serve any purpose, if it is not obtained within the validity of the Authorisation. In this case, the applicant did not approach the Regional Authority concerned for doing so. It is therefore submitted that there is no merit for seeking enhancement after expiry of the Authorisations. 111. The submissio....
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....ment. 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:- "2.3:Interpretation of Policy:- If any question or doubt arises in respect of interpretation of any provision contained in FTP, or classification of any item in ITC (HS) or HBP- v1 or HBP-v2, or Schedule of DEPB Rates (including content, scope or issue of an authorization there under) said question or doubt shall be referred to DGFT whose decision thereon shall be final and binding." 121. Thus, the issue ought to have attained finality long back but for previous writ petitioner that came to be filed by the petitioner. VALIDITY PERIOD OF AN ADVANCE AUTHORISATION. 122. As per Paragraph 4.1.7 of the Foreign Trade Policy, the validity of Advance Authorisation for import shall be as prescribed in Handbook of Procedure. 123. Paragraph 2.12 of the Handbook of Procedure to Foreign....
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....uthorisation 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 request of original Authorisation holder and grant one revalidation for 6 months from expiry date. Request(s) for revalidation of Authorisation shall be made in ANF 4E. (b) In case of revalidation of advance authorization issued prior to 27.08.2009, it should be ensured that VA is maintained at 15% (and as per details mentioned in Paragraph 4.16 of FTP) mentioned in Paragraph 4.16 of FTP or as stipulated in the Advance Authorization, whichever is higher. However, for Advance Authorizations for products with VA as per Appendix 11B, the VA shall be as per the VA stated in Appendix 11B or as stated in Advance Authorisation, whichever is higher. 130. Request for an revalidation of an Advance Authorisation can be made once for 6 months from the expiry of date of its validity in terms of Paragraph 4.23 of the Handbook of Procedur....
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....3 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 context of Advance licence issued under EXPORT IMPORT POLICY 1997-2002. It has no relevance to the facts of the case. It reads as under: "In exercise of powers conferred under Paragraph 4.11 of the Export and Import Policy, 1997-2002 as notified in the Gazette of India extraordinary, Part-II Section-3-Sub Section (ii) vide S.O.No.283 (E) dated 31.03.1997, the Director General of Foreign Trade hereby notify the following dispensation:- 2. Advance Licenses issued during 1992-97 Policy, shall be entitled for revalidation for a further period of 6 months, even if a time period of 30 months has already expired, subject to the following conditions: i. This facility will be available where exports have already been completed but the licenses could not be utilized on account of expiry of these licenses. ii.Application for revalidation may b....
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.... 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 paragraph 4.23 RA may consider a request of original Authorization holder and grant one revalidation for 6 months from expiry date. 142. As per para 4.21 of Handbook of Procedure, the concerned Regional Authority could consider the request for enhancement or reduction in the value of the a 3. As per para 4.21.1 of the Handbook of Procedure to Foreign Trade Policy 2004-09, request for pro rata enhancement in the value and quantity may be made either before or after exports. It further stipulates that in such cases where there is a change in standard input output norm SION prior to export of the product, pro rata enhancement shall be given after calculating entitlement on revised SION. APPLICATION AFTER EXPIRY OF LAST DATE: 143. Under Paragraph 9.3 of the Handbook of Procedure, wherever any applications are received after the expiry of the last date of submission of such application, but within 6 months from the las....
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....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 obligation issued under FTP 2004-09, 2009-14 and 2015-20 were to be fulfilled within 18, 24 and 36 months respectively. 148. As per Paragraph 4.22 of the Handbook of Procedure with effect from 27.8.2009 the normal period of discharge of export obligation to 18 months. 149. Paragraph 4.22 Handbook of Procedure as it stood before and with effect from 27.8.2009 are reproduced below for a comparison :- Paragraph 4.22 Handbook of Procedure before 27.8.2009. Paragraph 4.22 Handbook of Procedure with effect 27.8.2009. Export Obligation Period (EO) and its Extension: Paragraph 4.22 Handbook of Procedure before 27.8.2009. Paragraph 4.22 Handbook of Procedure with effect 27.8.2009. The period of fulfillment of export obligation under an Advance Authorisation shall commence from the date of issuance of authorisation. The export obligation shall be fulfilled within a period of 24 months except in the case of supplies to the projects/turnkey projects in India/abroad ....
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.... 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 composition fee of 5% of the duty saved on all the unutilized imported items as per authorization. Similar provision does not exist in the Handbook of Procedure 2009-14. The 2ndgrace period for discharging the export obligation expired on 27.02.2010 and 23.03.2010 respectively. 154. No applications were filed within the time prescribed for extending the period of export obligation. Since, such a request was made for the first time on 16.2.2011, it was correctly rejected on 02.06.2011. Further, it is also not clear about the quantity imported and quantity that was lying unutilized on these dates when the period expired. The case of the petitioner does not fall within the above specified period. In any event no application was filed by the petitioner in time. Therefore, the petitioner has no case made on merits. 155. A second attempt was made on 28.11.2011 which was also rejected on 11.09.2012. The appeals were filed thus before the first respondent on 10.10.2012 which were rejected on 5.2.2013 . It led to ....
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....n amount equivalent to 3% of the CIF value of unutilized imported material through a TR in authorized branch of Central Bank of India indicating the " Head Account: 1453, Foreign Trade and Export Promotion and Minor Head 102". Authorisation holder shall also be required to obtain a 157. Under Paragraph 2.5/2.8 of the Foreign Trade Policy DGFT may, in public interest exempt any person or class of persons from any of the provisions of FTP or any procedure and may, while granting such exemption, impose such conditions as he may deem fit. There is no public interest involved on account of delay and on account of the so called technical glitch in the petitioners SAP. 158. Request for revalidation of an Advance Authorisation can be made once for 6 months from the expiry of date of its validity in terms of Paragraph 4.23 of the Handbook of Procedure and/or for enhancement/reduction in the entitlement in terms of Paragraph 4.21 of the Hand Book of procedure can be made only either before or after export. 159. However, it should be made within the time prescribed under para 9.3 of the relevant Foreign Trade Policy. Such applications even if filed belatedly can be entertained only in term....
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....n Committee (a) Fixation/ modification of product norms under all schemes Norms Committee (b) Nexus with Capital Goods (CG) and benefits under EPCG Schemes EPCG Committee (c) All other issues Policy Relaxation Committee (PRC) 162. A reading of the provisions of the above paragraph it makes clear that DGFT may in public interest grant exemption, relaxation or relief, as he may deem fit, after consulting PRC, on ground of genuine hardship and adverse impact on trade. Thus, the Policy relaxation is not a matter of right. For seeking relaxation, an applicant seeking relaxation/exemption has to establish genuine hardship or prove beyond reasonable doubt adverse impact on trade. In this case, the petitioner has failed to establish concrete ground of genuine hardship or adverse impact on trade. 163. The contention of genuine hardship that due to introduction of SAP software the petitioner faced technical problems in all their units across India during the year 2007-09, imports and exports made from the said units against the above said authorizations were incorrectly accounted resulting into loss of control over accounting of goods under the said....
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....ation. 167. As per paragraph 4.1.14 of Foreign Trade Policy 2004-09 (FTP) drawback under the Customs Act, 1962 and the rules made thereunder was available for any duty paid materials, whether imported or indigenous, used in the export goods as per the drawback rates fixed by the Department of Revenue, Ministry of Finance (Directorate of Drawback). 168. Coming to the issue under consideration, there is a subtle difference in the Foreign Trade Policy and the relevant Handbook of Procedure between:- i. Exemption of Policy under Paragraph graph 2.5 of the Foreign Trade Policy 2004-2009 and 2009-2014 and later under 2.58 of the Foreign Trade Policy /2015-20; and ii. The period of validity of an Advance Authorisation and its Revalidation (Paragraph graph 4.23 of the relevant Handbook of Procedure); and iii.The period for Discharging the Export Obligation and its extension; (Paragraph graph 4.22 of the Handbook of Procedure); and iv. Enhancement/Reduction in the Value Of Authorisation; and(Paragraph graph 4.21 of the Handbook of Procedure); and v. Filing of Application beyond the prescribed date( Paragraph graph 9.3 of the Handbook of Procedure) 169. Further, the request for ....
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....al melt down, the existing export orders were not cancelled by the over sea buyers. On the other hand, the petitioner comfortably exported the goods. However, in the Shipping bill it failed to mention the details of Advance Authorisation . 176. It appears that the petitioner either did not fully utilize the four Advance Authorisations for importing the goods on account of glitch in its SAP and /or has utilized it for import but has not logged the export against in shipping bills. If the latter is true, the petitioner should produce the record for redemption of its liability under the Advance Authorisation. 177. In view of the above, the decision of the other High Courts cited and other decisions taken for other importer cited are not relevant. Further, as per Para 2.3 of the Foreign Trade Policy, the decision of the first respondent DGFT, is final. 178. Imports of supplies covered under paragraph 8.2(h) and (i) of the Foreign Trade Poliy 2004-09 were not exempted from payment of applicable anti-dumping and safeguard duty, if any. Imports under Advance Authorisation were permissible on actual user condition and such imports were not transferable. 179. Imports under Advance Autho....