*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th July, 2011
+ W.P.(C) 5830/2008
M/S RAKHEJA ENTERPRISES ..... Petitioner
Through: Mr. Raja Chatterjee & Mr. Sachin
Das, Advs.
Versus
UOI & ANR. ..... Respondents
Through: Mr. Rajesh Rawal, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 22nd August, 2006 of the Second Appellate Committee of the Ministry of Textiles, Government of India dismissing the Second Appeal preferred by the petitioner against the order dated 8th June, 2006 of the First Appellate Committee dismissing the First W.P.(C) No.5830/2008 Page 1 of 6 Appeal of the petitioner. The First Appeal had been preferred against the speaking order dated 25th August, 2005 of the respondent No.2 Apparel Export Promotion Council (AEPC) imposing forfeiture of `20,12,418/- on the petitioner owing to non fulfillment by the petitioner of terms and conditions of quota allotment.
2. The speaking order dated 25th August, 2005 of the respondent No.2 AEPC records that the petitioner failed to attend the personal hearing and / or to submit any reply to the show cause notice issued to it. The amount to be forfeited was computed after taking into account the proof of shipment / documents / overall utilization as available on record.
3. A perusal of the order dated 8th June, 2006 of the First Appellate Committee shows that the contention of the petitioner therein was of being covered under the "Force Majeure" condition. The First Appellate Committee held the petitioner to be not so covered.
4. The Second Appellate Committee in its order dated 22 nd August, 2006 has recorded that the petitioner has failed to submit the necessary proof of shipments inspite of time of 18 months having been given to it. The Second W.P.(C) No.5830/2008 Page 2 of 6 Appellate Committee accordingly confirmed the forfeiture; however a relief of `3,50,361/- was granted to the petitioner, reducing the amount forfeited to `16,62,057/-.
5. The counsel for the petitioner contends that the said amount has already been forfeited and received by the respondent No.2 AEPC. The counsel for the respondent No.2 AEPC also confirms the said position.
6. The counsel for the petitioner however contends that the petitioner had during the relevant period effected the requisite exports and no forfeiture ought to have been effected.
7. After hearing the counsels and on a perusal of the orders aforesaid, it is borne out that the petitioner neither before the respondent No.2 AEPC nor before the First or the Second Appellate Committee produced the documents to show that the requisite exports had been effected by it. The only argument of the counsel for the petitioner is that since copies of the documents of export are retained by the respondent No.2 AEPC also, the respondent No.2 AEPC has incorrectly, on the basis of its records, concluded that the requisite exports have not been effected. W.P.(C) No.5830/2008 Page 3 of 6
8. The counsel for the respondent No.2 AEPC controverts. He contends that the documents are required to be submitted by the member exporter to the respondent No.2 AEPC. He further states that the documents may be available in the records but the proof of shipment (POS) is to be submitted by the member exporter.
9. The finding that the petitioner has not effected the requisite exports is a finding of fact. The petitioner is unable to show that there is any perversity in the findings of the three successive fora as aforesaid. In the circumstances, no case for judicial review is made out and the petitioner is not found entitled to any relief in the petition.
10. Be that as it may, it is felt that since the matter relates to inferences to be drawn from documents and that neither should the respondent No.2 AEPC be unduly enriched nor should petitioner be prejudiced, another opportunity be granted to the petitioner for showing documents and reconciliation of the accounts, but subject to the condition that such opportunity / reconciliation shall be done as a "referee" within the meaning of Section 20 of the Evidence Act, 1872 i.e. whatsoever be the finding on the W.P.(C) No.5830/2008 Page 4 of 6 said reference, the same shall be treated as an admission of the petitioner and thus be binding on the petitioner. The imposition of such condition is felt necessary inasmuch as in the facts and circumstances aforesaid, the petitioner is otherwise not found entitled to second chance and so that the procedure directed to be so adopted does not result in a fresh round of litigation. The counsel for petitioner is agreeable to the same.
11. It has been enquired from the counsels as to which of the three fora aforesaid would be most competent to go into the said accounts and documents. After hearing, it has been agreed that the said exercise be undertaken by the First Appellate Committee.
12. Accordingly, though no merit is found in the case of the petitioner and the petitioner is not found entitled to any relief by way of right, however, only by way of indulgence, a fresh opportunity is granted to the petitioner, to produce all the documents on which it seeks to rely upon to contend that the forfeiture effected is wrongful and or excessive, on or before 12 th August, 2011 before the First Appellate Committee. The petitioner to appear before the First Appellate Committee in the first instance on any date which may be W.P.(C) No.5830/2008 Page 5 of 6 given of after 12th August, 2011 by the First Appellate Committee and thereafter if necessary on such further dates as may be fixed. It is made clear that the petitioner shall not be entitled to more than two hearings unless so deemed necessary by the First Appellate Committee. The First Appellate Committee after going through the documents produced by the petitioner to pass an order as to whether the amount forfeited from the petitioner is justified or not. The said finding of the First Appellate Committee shall be binding on the petitioner as an admission and the petitioner would not have any right of further challenge thereto.
Needless to state that in the event it is found that the forfeiture already effected is unjustified or excessive, the petitioner shall be entitled to refund / adjustment of such amount / excess amount, however, without any interest till the date of such determination.
No order as to costs.
Dasti under signature of the Court Master.
RAJIV SAHAI ENDLAW (JUDGE) JULY 12, 2011/„gsr‟ W.P.(C) No.5830/2008 Page 6 of 6