Intimate Fashions (India) Private Limited, Represented by its Deputy General Manager-Finance, David Robert Samuel Ponraj, Nandhivaram vs Additional Director General of Foreign Trade, Ministry of Commerce and Industry, Chennai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 2636

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M/s. Intimate Fashions (India) Private Limited, Represented by its Deputy General Manager-Finance, David Robert Samuel Ponraj, Nandhivaram & Another – Appellant
Versus
The Additional Director General of Foreign Trade, Ministry of Commerce and Industry, Chennai & Others – Respondent
WP Nos. 14307 to 14309, 12212 22315 & 22316 of 2015 & MP Nos. 1, 1, 1, 1, 1 & 1 of 2015
Decided On : 22-12-2021

Advocate Appeared:
For the Petitioners:S. Muthuvenkataraman, S. Muurugappan, Advocates.
For the Respondents: B. Sudhir Kumar, Senior Panel Counsel, A. Murughan, Central Government Standing Counsel.

Headnote:
Constitution of India, 1950 - Article 226 - License - Permit transferability and utilisation of license - policy benefit - All petitioners are Export Oriented Units and under Scheme, they have availed certain benefits - It is a policy decision, which was being implemented - Respective learned counsels appearing on behalf of petitioners importantly raised that the order impugned is hit by Rule of Limitation and thus, Authorities have no jurisdiction to issue order impugned - Whether High Court would be in a position to form an opinion with reference to various disputes raised on merits, including the point of limitation - Held, Admittedly, petitioners fell under the category of EOUs. The audit pointed out this provisions for regulating the SHIS duty credit in respect of EOUs has put them in an advantageous position as compared to other Status Holder Exporters, who are denied the SHIS benefit if they avail zero duty EPC - Court opinion that audit objection raised on the one end and the order impugned based on other end must be looked into for the purpose of considering the importance involved for adjudication of disputed issues - This being principles to be followed, Authority, who issued demand notice, shall conduct an enquiry by affording an opportunity to petitioners and decide issues on merits and in accordance with law, including legal grounds and point of limitations raised by parties - For completion of above said exercise, petitioners are directed to submit their objections, explanations, documents etc., to Additional Director General of Foreign Trade, within a period of four weeks from date of receipt of a copy of this order and on receipt of objections, explanations, documents etc - Writ petitions disposed of.

JUDGMENT

(Prayer: WP 14307 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records comprised in File No.04/21/88/00148/AM13/17 dated 31.03.2015 on the file of the respondent to permit transferability and utilisation of the said license and extend the validity period of the license as may be felt necessary by this Court in light of the fact that the petitioner has been put to undue hardship on account of the recovery proceedings during which could not transfer/utilise the said license.

WP 14308 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records comprised in File No.04/21/88/00151/AM13/17 dated 31.03.2015 on the file of the respondent to permit transferability and utilisation of the said license and extend the validity period of the license as may be felt necessary by this Court in light of the fact that the petitioner has been put to undue hardship on account of the recovery proceedings during which could not transfer/utilise the said license.

WP 14309 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records comprised in File No.04/21/88/00167/AM13/14 dated 31.03.2015 on the file of the respondent to permit transferability and utilisation of the said license and extend the validity period of the license as may be felt necessary by this Court in light of the fact that the petitioner has been put to undue hardship on account of the recovery proceedings during which could not transfer/utilise the said license.

WP 12212 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records comprised in File No.04/21/88/00143/AM14 dated 09.02.2015 on the file of the respondent to permit transferability and utilisation of the said license and extend the validity period of the license as may be felt necessary by this Court in light of the fact that the petitioner has been put to undue hardship on account of the recovery proceedings during which could not transfer/utilise the said license.

WP 22315 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records of the second respondent viz., F.No.04/66/88/00022/AM14 culminating in the letter F.No.04/66/88/00022/AM14 dated 13.02.2015 and quash the order No.F.No.04/66/88/00022/AM14 dated 13.02.2015.

WP 22316 of 2015 is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records of the second respondent viz., F.No.04/66/88/00039/AM14 culminating in the letter F.No.04/66/88/00039/AM14 dated 16.02.2015 and quash the order No.F.No.04/66/88/00039/AM14 dated 16.02.2015.)

These writ petitions on hand are instituted questioning the order passed for recovery of excess due credit issued from Status Holder Incentive Scrip (SHIS) Scheme.

2. All the petitioners are Export Oriented Units and under the Scheme, they have availed certain benefits. It is a policy decision, which was being implemented.

3. The respective learned counsels appearing on behalf of the petitioners importantly raised that the order impugned is hit by the Rule of Limitation and thus, the Authorities have no jurisdiction to issue the order impugned. It is passed beyond the period of two years. Thus, liable to be set aside.

4. It is contended that the policy benefit availed are sought to be recovered merely based on the audit objection raised. Audit objections are raised based on the erroneous interpretation of the terms of the Scheme and beyond the scope of the Scheme and thus, the very initiation of recovery proceedings are in violation of the Scheme benefits as promised by the respondents.

5. Even on merits, the petitioners have raise

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