(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Rule.
Learned Assistant Solicitor General Shri Champaneri waives service of rule for respondents no. 1 and 3. Learned Central Government Standing Counsel Shri Y.N. Ravani waives service of rule for respondent no.3. Learned counsel Shri Pradeep Patel waives service of rule for respondent no.4.
The petitioners seek following reliefs :
"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or an other writ, order or direction quashing the impugned Appellate Order bearing F.12013/18/2005-ADJ/AC(Annexure-L)to an extent to which the same issues directions for initiating recovery proceedings in case the petitioner company does not fulfill export obligation within a period of six months.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing communication (order) dated 22.3.2007(Annexure-O) issued by the Development Commissioner, Kandla Special Economic Zone (C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing the decision dated 16.9.2010 taken during the meeting(Annexure-A) (D) Pending hearing and final disposal of this petition, Your lordships may be pleased to restrain the Deputy Commissioner of Customs, Kandla Special Economic Zone, Kandla from taking any action, coercive or otherwise for the purpose of recovery of penalty imposed on the petitioner company vide Order-in-original No.18/03-04 dated 29.3.2003(Annexure-I) passed by the respondent No.2 and in pursuance of communication (order) dated 22.3.2007(Annexure-O) (E) An ex-parte ad interim relief in terms of para 9(D) above may kindly be granted.
(F) Any other further relief as may deem fit in the facts of the case be granted."
It is not in dispute that the issues involved in the present petition are squarely covered by decision of Division Bench in case of Disco Garments Pvt. Ltd. v. Union of India reported in 2011(273) E.L.T. 198(Guj.). The Bench concluded as under :
"(25) In view of the foregoing discussion, in the instant case the only allegation against the petitioners is that there is non-fulfillment of export obligation and breach of condition of value addition to the tune of 40%, which, as per the show cause notice dated 08.08.1995 is construed as mis-utilization of goods imported. Considering the facts of the present case and the ratio laid down by the above referred judgments, we are of the opinion that mere non-fulfillment of export obligation and not achieving value addition to the tune of 40% as per the conditions of the letter of approval would not fall under any of the clauses of section 4-I of the Act 1947. It is also worthwhile to note that there are no other allegations whatsoever as regards breach of any conditions of grant of approval, except what is stated in clause 3 of the impugned show cause notice and even the appellate authority, taking into consideration the genuine problems of the petitioners, has been pleased to reduce the fiscal penalty from Rs.10 lac to Rs.5 lac, It cannot be concluded that there is any misutilization or misdeclaration on the part of the petitioners. The respondents cannot be permitted to substitute the reasons in order to attract the provision of Section 4-I of the Act 1947. We therefore find that the impugned orders dated 09.09.1996 and 03.04.1998 are unsustainable in the eyes of law and in the facts of the present case the provisions of section 4-I of the Act 1947 are not attracted and, therefore, the petitioners are not liable to pay penalty. It is however, made clear that it would be open for the respondent authorities to take any other action for non-fulfillment of export obligation and non-achieving of value addition as per letter of approval against the petitioners under any other Acts, Rules and Regulations in force.
(26) The petition, therefore, deserves to be allowed. The impugned order dated 09.09.1996 (Annexure-F to the petition) and order dated 03.04.1998 (Annexure-I to the petition) are hereby quashed and set aside. Rule is made absolute and in the facts of the case there shall be no order as to costs."
Previously when the present matter was taken before us, on behalf of the respondents, it was pointed out that the Union of India has filed review petition seeking review of judgement of Division Bench in case of Disco Garments Pvt. Ltd. (supra).
Today counsel for the petitioner pointed out that such review petition also has been dismissed by the Bench. Learned counsel Shri Champaneri for the Union of India did not dispute this statement.
In that view of the matter, we have no hesitation in applying the decision of this Court in case of Disco Garments Pvt. Ltd. (supra).
In the result, without further elaborate discussions, petition is allowed. We quash order-in-original dated 29.3.2004, appellate order communicated under communication dated 6.6.2006 as well as the decision of the Board of Approvals in its 42nd meeting dated 16.9.2010 pertaining to item no.(x) in agenda item 42.24 of the said meeting.
Petition is disposed of. Rule made absolute accordingly.
(Akil Kureshi,J.) (Ms.
Sonia Gokani,J.) (raghu) Top