M/S Wadpack Private Limited v. The Director General of Foreign Trade & Anr

NAVIN CHAWLA, J MARCH 05, 2020/rv/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 13.02.2020 Date of decision: 05.03.2020 + M/S WADPACK PRIVATE LIMITED ..... Petitioner Through: Mr.Karan Sachdev & Mr.Kunal Kapoor, Advs. versus THE DIRECTOR GENERAL OF FOREIGN TRADE & ANR ..... Respondents Through: Mr.Akshay Makhija, CGSC with Ms.Kriti Awasthi, Adv. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner praying for a Writ of Mandamus directing the respondent no. 1 to condone the procedural lapse of supplying the goods to the SEZ units only under ARE-1 without Bills of Exports with respect to its Advance Authorization No. 0710063364 dated 02.03.2009 as also for issuance of Redemption Certificate to the petitioner with respect to the said Advance Authorization. 2. The facts in brief are that the petitioner was issued the Advance Authorization by the respondent no. 2 on 02.03.2009. The petitioner claims to have supplied the finished goods, that is corrugated boxes, to Nokia Semens and its units in SEZ units between 2009 to 2011. On 22.05.2012, the petitioner submitted the documents to respondent no. 2 Page 2 for issue of Export Obligation Discharge Certificate (EODC). The respondent no. 2 in turn called upon the petitioner to furnish the Bills of Exports towards goods supplied to the SEZ units as also the Bank Realization Certificate in Appendix-22A of the Hand Book of Procedure. The petitioner, while submitting The Bank Realization Certificate, instead of Bills of Exports, submitted the ARE-1 as proof of making exports against Advance Authorization. The petitioner claims that due to an inadvertent error, the Bills of Exports were not filed. 3. Pursuant to an order for personal hearing being granted to the petitioner, passed by this Court, the petitioner approached the Policy Relaxation Committee (PRC) seeking condonation of this lapse. The PRC in its meeting dated 02.02.2016 observed as under:- "The case was discussed again at length. The committee was of the view that in terms of Para 4.12 of FTP, 2009- 14, the applicant was require to mention consumption of exempted materials on export documents along with file No/Licence No against that exports are being made towards discharge of export obligation. In terms of Para 4.25 of HBP, 2009-14 read with ANF-4F for discharge of export obligation, the applicant should submit original copy of Shipping Bill/Bill of Export, Excise Invoice and Bank Realisation Certificate. However, the applicant has failed to submit these documents except BRC Certificate issued by Superintendent Central Excise cannot substitute the documents prescribed in ANF-4F because it does not prove that duty free imported goods were consumed in the resultant products have been supplied to SEZ unit towards discharge of export obligation against Advance authorization in question. The Committee, therefore, did not accede to the request. The applicant is hereby Page 3 directed to get the case regularized in terms of Para 4.49 of Hand Book of Procedures, 2015-20." 4. The learned counsel for the petitioner submits that though the petitioner admits its mistake of not submitting the Bills of Exports as they were not generated/filed, the petitioner, in form of ARE-1; its own affidavit alongwith statement showing use of imports for finished goods duly certified from the Chartered Accountant; and a certificate confirming the receipt of goods in the SEZ as also the Bank Realization Certificate, has produced sufficient proof to show its entitlement to the fulfillment of exports obligation under the Advance Authorization and therefore, was entitled to the issuance of the EODC. He places reliance on the judgment of the Bombay High Court in Larsen & Toubro Limited vs. Union of India, 2018 (360) ELT 289 (Bom.), to submit that in a similar circumstance, the High Court had held that where the ARE-1 form had been supplied, it was only a technical obligation of the said form not mentioning the Advance Authorization Number in