TaxTMI 
TaxTMI 
2001 (5) TMI 61
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the secured amount by the bank guarantee for alleged non-fulfilment of export obligation were challenged. During pendency of the writ petition because of subsequent event the petitioner got the petition amended whereby the petitioner challenged the letter dated 5th September, 2000 intimating cancellation of LOP. In spite of direction being given on several times no affidavit-in-opposition has been filed. However, opportunity was given to produce the records. The fact of the case is recorded in short as follows : 2.The petitioner company undertook a project with approval of Reserve Bank of India for manufacturing of Colour Computer Monitor Terminals in collaboration with a foreign firm i.e., M/s. Winny Electron Enterprise Co. Ltd. of Tai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rest thereon. Both paragraph 9.28 of the Exim Policy 1997-2002 and the Handbook of Procedures at para 9.3 contemplate conversion for existing D.T.A units to 100% E.O.U. By the aforesaid policies it was provided that existing D.T.A. units might also apply for conversion into an E.O.U. The existing D.T.A. units having an export commitment under EPOG Scheme may apply for conversion into E.O.U. unit. For such conversion the export commitment under EPOG Scheme will be subsumed in its export as an E.O.U. 4.On application being made for conversion as above the Development Commissioner granted permission for conversion of the petitioner's D.T.A. unit to 100% E.O.U. The letter of permission stipulates 3 years for the validity thereof but at the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re is no such eventuality. In support of this contention he has relied on a decision of the Supreme Court reported in 1999 (8) SCC 436 at paras 9 and 21 = AIR 1999 SC 3710 paras 8 and 20 (Hindusthan Construction Company Ltd. v. State of Bihar). 6.Mr. Mitra contends that impugned order dated 5th September, 2000 whereby LOP was cancelled and was passed in gross violation of the principles of natural justice as it was done without serving any notice or giving any opportunity to the petitioner. Moreover this order of cancellation is also vindictive and arbitrary action as it was passed at certain point of time when the entire subject-matter was sub judice before the court. In all fairness the aforesaid order of cancellation should not have b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the appropriate person has tried to invoke Bank Guarantee. It is settled law the Bank Guarantee is a separate agreement providing mutual rights and obligation between the beneficiary and the banker. Therefore, the bank is not supposed to perform unless the conditions stipulated therein are fulfilled. The conditions, in my view, in this case are the actual beneficiary is to invoke, and the suffering of loss and damages due to any breach of the petitioner. I have examined the impugned document of invocation addressed to bank and I do not find that the aforesaid conditions have been fulfilled or the very basis has been stated therein. I also find the invocation has not been made by the DGFT who is the only person to invoke. So, I hold that t....