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2018 DIGILAW 427 (BOM)

Welspun Corp. Ltd. v. Union Of India

2018-02-12

BHARATI H.DANGRE, S.C.DHARMADHIKARI

body2018
ORDER S.C. Dharmadhikari, J. - The Notice of Motion is on board, but both sides have no objection to the writ petition itself being disposed of by the present order. 2. The petition is directed against the order/communication dated 1st April 2013 (Exhibit-Q) and 4th October 2013 (Exhibit-R). These two communications have been placed on file after the petition was amended. 3. By the amended petition, an order dated 11th September 2013 (Exhibit-M) is also challenged to the extent that the fourth respondent in passing that order has cancelled the redemption certificates and imposes fiscal penalty. 4. On such a petition when detailed affidavits were filed, it is stated that the controversy was alive, but after this petition was admitted on 20th November 2013 and interim reliefs were granted, the developments are that out of 52 advance licences/authorizatons, 36 advance licences/authorizations were issued by the Office of the Director General of Foreign Trade, Vadodara, and 16 were issued by the Office of the Joint Director General of Foreign Trade, Mumbai - respondent No. 2. The decision of the Norms Committee dated 2nd May, 2012 was given effect to or complied with in relation to 36 advance licences issued by the office of the Joint Director General of Foreign Trade, Vadodara (for short "Joint DGFT"). This was done by letter dated 27th February, 2014. 5. As far as the impugned order dated 11th September, 2013 is concerned, that was challenged before the Customs, Excise and Service Tax [Appellate] Tribunal (for short "CESTAT") as well as before the Hon''ble Supreme Court. That order is based on the order passed on 19th April, 2013 by the Commissioner of Customs, Kandla. That order confirmed the demand raised by a show cause notice issued by the office of the Joint Director General of Revenue Intelligence, Mumbai. This order of the Commissioner of Customs, Kandla was set aside by the Tribunal on 22nd May, 2014, copy of which is Exhibit-3 to the affidavit in support to this Notice of Motion. This order was confirmed by Hon''ble Supreme Court as the Revenue''s appeal was dismissed on 28th November, 2014. 6. In paragraph No. 7 of the affidavit in support, it is stated as under : "7. I further say that the Order dated 22nd May 2014 of the Tribunal is a common order passed in relation to three other similarly situated parties like the petitioner. 6. In paragraph No. 7 of the affidavit in support, it is stated as under : "7. I further say that the Order dated 22nd May 2014 of the Tribunal is a common order passed in relation to three other similarly situated parties like the petitioner. These three parties are M/s. Man Industries Limited, M/s. Ratnamani Metals Pvt. Ltd. and M/s. PSL Limited. As far as M/s. Ratnamani Metals Pvt. Ltd. is concerned, the petitioners understand that unlike the impugned order dated 11th September 2013 passed by Respondent No. 4, the Office of the Joint Director General of Foreign Trade, Ahmedabad has dropped the proceedings under the Foreign Trade (Development and Regulations) Act, 1992. To the best of the petitioner''s knowledge and information, the said order passed by the Office of the Joint Director General of Foreign Trade, Ahmedabad, has attained finality. The petitioners crave leave to refer and rely upon the copy of the order when produced. With respect to the other two parties viz. M/s. Man Industries Ltd., and M/s. PSL Limited, both were visited with adverse orders passed by the office of the Additional Director General of Foreign Trade, Mumbai under similar circumstances with the same directions. M/s. PSL Ltd. and M/s. Man Industries Limited preferred statutory appeals to the Appellate Authority under the Foreign Trade (Development and Regulations) Act, 1992 and the Appellate Authority was pleased to set aside the orders passed by Respondent No. 4 in their respective cases vide orders dated 21st August 2015 and 28th September 2015. A copy each of the said two orders dated 21st August 2015 and 28th September 2015 is annexed hereto as Exhibit-5 and 6 respectively. To the best of the petitioner''s knowledge and information the above two orders have been accepted by the department and have therefore attained finality." 7. Thereafter, it is stated in paragraph Nos. 8 and 9 that in the light of this development, the petitioner approached the Office of the Joint Director General of Foreign Trade for a clarification in relation to the Advance licenses/Authorizations which were pending redemption. On 4th December 2015, the Office of the DGFT, New Delhi clarified that these would be allowed to be redeemed provided the export obligations have been fulfilled. That letter is Exhibit-8 to the affidavit in support of the Notice of Motion. On 4th December 2015, the Office of the DGFT, New Delhi clarified that these would be allowed to be redeemed provided the export obligations have been fulfilled. That letter is Exhibit-8 to the affidavit in support of the Notice of Motion. The petitioner pointed out that they have discharged the Export Obligation, and therefore, applied for issuance of the ''Export Obligation Discharge Certificate (for short ''EODC''). 8. In paragraph Nos. 11 and 12, the petitioner set out the developments in the following terms : 11. By letters dated 31st May, 2016 and 2nd June, 2016, the office of the Director General of Foreign Trade, New Delhi was pleased to allow redemption of the remaining 9 Advance Licenses/Authorizations, which were issued by the Office of the Joint Director General of Foreign Trade, Mumbai. I may add that 7 Advance Licenses/Authorizations were already redeemed prior to the impugned order dated 11th September, 2013. I therefore, say that all the 16 Advance Licenses/Authorizations issued by the Office of the Joint Director General of Foreign Trade, Mumbai also presently stand redeemed. 12. In the circumstances, I respectfully say and submit that all the 52 Advance Licenses/Authorizations issued to the petitioner, which are the subject matter of the present petition, have been redeemed and the export obligation against them stands discharged, particularly in view of the Clarification dated 16th May, 2012 issued by the Norms Committee as well as the Clarification dated 4th December, 2015 issued by the Office of the Director General of Foreign Trade, New Delhi. I say that with the discharge of the export obligation and the redemption of all the 52 Licenses, none of the allegations against the petitioner made in the present case as contained in the impugned order dated 11th September, 2013 passed by Respondent No. 4 is based entirely on the order passed by the Commissioner of Customs, Kandla, which as aforesaid, has also been set aside by the Tribunal and the appeal filed by the Commissioner of Customs has also been dismissed by the Hon''ble Supreme Court. Besides, two other similar orders passed by respondent No. 4 in respect of M/s. PSL Limited and M/s. Man Industries Limited, who were subject to common investigation by DRI and who are also parties to the same common order dated 22-5-2014 of the Tribunal, have also been set aside by the Appellate Authority under the Foreign Trade (Development and Regulations) Act, 1992, meaning thereby that the order dated 11th September, 2013 is also rendered unenforceable for the same reason contained in the order dated 21st August, 2015 (Exhibit-5 hereto) and the order dated 28th September, 2015 (Exhibit-6 hereto). I therefore, say and submit that the impugned order dated 11th September, 2013 (Exhibit-M to the petition) and the two impugned communications dated 1st April, 2013 and 4th October, 2013 are all liable to be forthwith set aside. 9. We have seen from a perusal of the affidavit in support and the annexures thereto that none of these factual developments post institution of the writ petition have been denied or controverted by the Revenue. Once identically situate, parties have obtained the relief and in terms of the order of the CESTAT, as confirmed by the Hon''ble Supreme Court and these certificates or letters of redemption, then, we do not think that anything would survive for adjudication. The Revenue has acted in terms of the orders and which bind it. We, therefore, do not think that the Director General of Foreign Trade can withhold the request which is made by the petitioner all the more when the orders passed and impugned in the petition, would not survive the scrutiny of law. 10. In these circumstances, we think that the Rule will have to be made absolute. The petition will have to be allowed. 11. It is accordingly allowed and now a mandamus shall issue to the concerned authorities to act in terms of the Norms Committee decision and grant the request of these petitioners. In the facts and circumstances of the present case, we are not in agreement with the Revenue that the petitioner must approach the appellate authority by filing an appeal, and the appellate authority will do the needful if there is no factual and legal dispute. 12. We are of the opinion that driving the petitioners to now file a further appeal would be sheer waste of time, more so, when the factual position is not denied by the respondents. 12. We are of the opinion that driving the petitioners to now file a further appeal would be sheer waste of time, more so, when the factual position is not denied by the respondents. 13. We, therefore, direct accordingly. 14. Petition is allowed in these terms. 15. No costs.