* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th September, 2014.
+ LPA 185/2010
M/S EVELINE INTERNATIONAL ..... Appellant
Through: Mr. Adeel, Adv.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Dr. Ashwani Bhardwaj and Mr.
Mohammad Ali Chaudhary, Advs.
for R-1/UOI.
Mr. Rajesh Rawal, Adv. for R-
2/AEPC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
CM No.16114/2014 (for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
LPA 185/2010, CMs No.4784/2010 (for stay), 4785/2010 (for condonation of 74 days delay in re-filing) & 16113/2014 (for filing additional documents)
3. This intra court appeal impugns the order dated 11th August, 2008 of the learned Single Judge of this Court of dismissal of W.P.(C) No.1813/2007 preferred by the appellant. The said writ petition was filed impugning the order dated 30th November, 2006 of the Second Appellate LPA No.185/2010 Page 1 of 8 Committee, Government of India, Ministry of Textiles (IT Section) dismissing the appeal of the appellant against the order dated 19 th October, 2006 of the First Appellate Committee, Government of India, Office of the Textiles Commissioner dismissing the appeal of the appellant against the speaking order dated 15th September, 2005 of the Joint Commissioner of the respondent No.2 Apparel Export Promotion Council (AEPC) imposing penalty of Rs.11,14,424/- on the appellant for non-performance / non- compliance of Past Performance Entitlement quota applied for and allocated to the appellant by the respondent No.2 AEPC for the year 2004.
4. The appeal came up first before this Court on 16 th March, 2010 when the same was admitted for hearing and it was directed that the Bank Guarantee furnished by the appellant will be kept alive till the disposal of the appeal, if not already encashed. The appeal was on 10 th May, 2013 dismissed in default of appearance of the appellant but upon the appellant filing an application, restored vide order dated 5th July, 2013. The appellant has filed CM No.16113/2014 for permission to file additional document i.e. the statement of objections filed by the respondent No.2 AEPC in W.P. No.43683/2004 (GM-RES) titled M/s. Personality Limited Vs. Union of India and Ors. of the High Court of Karnataka at Bangalore. LPA No.185/2010 Page 2 of 8
5. We have heard the counsel for the parties.
6. We may notice that the appeal was accompanied with CM No.4785/2010 for condonation of 74 days delay in re-filing thereof. Though there is no formal order till date condoning the said delay but the appeal having been admitted for hearing and having remained pending since then and the counsels also having not drawn attention thereto, we do not feel the need to go into the said question at this stage and accordingly condone the delay, if any in filing of the appeal and in re-filing of the appeal.
7. We have at the outset enquired from the counsel for the appellant that there being concurrent finding of fact of the three statutory authorities as well as of the learned Single Judge, of the appellant being in non- performance / non-compliance of Past Performance Entitlement quota allocated to it for exports in the year 2004, how is it open to the appellant in this LPA to agitate the said factual controversy. We may notice that it is not the argument of the appellant that the authorities which have imposed the said penalty on the appellant were not competent or empowered to do so. There is no dispute as to the quantum of the penalty imposed also.
8. The counsel for the appellant though unable to controvert so, has based his argument on the additional document for filing whereof LPA No.185/2010 Page 3 of 8 permission is sought. It is contended that the respondent No.2 AEPC in the said counter affidavit in a proceeding in the High Court of Karnataka has taken a stand that owing to sudden increase in the demand in the second half of the year 2004, 100% of the quota allocated had been achieved as on 2 nd November, 2004 and owing whereto the respondent No.2 AEPC by Circular dated 27th October, 2004 had stopped export of garments in the category 340 / 640 to the United States (US). It is argued that the respondent No.2 AEPC having so admitted in another legal proceeding that it had stopped the exports, cannot be allowed to impose penalty on the appellant for non fulfilment of the quota allocated to the appellant on the basis of its Past Performance Entitlement.
9. We have enquired from the counsel for the appellant, whether it was the plea of the appellant in response to the show cause notice issued to it before imposition of such penalty that the appellant was unable to fulfil / perform or comply with its export quota for the reason of the export having been so stopped by the respondent No.2 AEPC. We may notice that the learned Single Judge in the impugned order has noted that the appellant / writ petitioner had neither produced the copy of the reply dated 15 th September, 2005 stated to have been submitted to the said show cause LPA No.185/2010 Page 4 of 8 notice nor participated in the hearing, opportunity whereof was given to the appellant / writ petitioner. From a reading of the order dated 15 th September, 2005 supra also, we do not find the appellant to have taken any such ground in the reply.
10. Though the appellant even before us has not furnished the copy of the said reply dated 15th September, 2005 but the counsel for the appellant has in this regard drawn our attention to the order dated 19 th October, 2006 of the First Appellate Committee where the plea of the appellant of the short shipment being due to Embargo Cat. 338 is noticed. We may however note that the said contention was not accepted by the First Appellate Committee. We may further notice that even the Second Appellate Committee held that there is no justification in the said contention of the appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant. The learned Single Judge also, in the impugned judgment dealing with the said contention of the appellant, has held that the Past Performance Entitlement export quota allocated to the appellant was not only under the category of US 338 but in other categories also; that the appellant did not produce any document before the adjudicatory authority to LPA No.185/2010 Page 5 of 8 show that it was unable to export owing to any such embargo; that the documents submitted before the First Appellate Committee also showed that the quota allocated to the appellant was for other countries also; that to enable the appellant to succeed on the said plea, it was incumbent upon the appellant to establish that the shortfall was only in quota items of US 338 and not in other quota of different country code but which the appellant had failed to do and thus the said plea could not be believed.
11. The position remains the same today also. The appellant has still not produced any document to show that the unfulfilled export allocation was for export to USA only. The additional document which is sought to be produced only establishes that there was indeed an embargo as from 2 nd November, 2004 for export to US. However that was / is not disputed by the respondent No.2 AEPC. The reason why the said plea has not been accepted by the two statutory authorities below as well as by the learned Single Judge, is of the unfulfilled quota being not of export which was banned and on which aspect nothing has been produced by the appellant before us also.
12. Be that as it may, the same also as aforesaid, is a question of fact and which finding we cannot revisit in this jurisdiction after the concurrent LPA No.185/2010 Page 6 of 8 findings in this respect of the two statutory authorities below and the learned Single Judge of this Court.
13. The counsel for the respondent No.2 AEPC has drawn our attention to Gokaldas Images Ltd. Vs. Union of India 116 (2005) DLT 47 holding that when an exporter gets an entitlement, the same is with the conditions attached to such entitlement and the requirement is to fulfil the export obligations by 30th of September of the year concerned and if the exporter fails to fulfil the export obligations, he is required to surrender the entitlement so that the same can be made available to other exporters, who may utilise it for the remaining period of the calendar year up to 31st of December. A copy of the order dated 9th February, 2009 of the Division Bench of this Court in LPA No.1120/2006 preferred thereagainst is handed over to show that the view of the learned Single Judge stands affirmed by the Division Bench.
14. The counsel for the respondent No.2 AEPC has also handed over in the Court a copy of the judgment dated 18th November, 2013 of a learned Single Judge of this Court in W.P.(C) No.876/2008 titled Goenka & Goenka Vs. Union of India and in other connected petitions where also the aforesaid affidavit filed by the respondent No.2 AEPC before the Karnataka LPA No.185/2010 Page 7 of 8 High Court was considered and notwithstanding the same, the penalty imposed for non-fulfilment of the quota was upheld. Though the counsel for the appellant before us was the counsel for the petitioner in the said case decided vide judgment dated 18th November, 2013 but is unable to state that whether any appeal was preferred thereagainst or not. The counsel for the respondent No.2 AEPC states that no notice of any appeal preferred against the said judgment has been received and the same has thus attained finality.
15. We do not find any reason to take a different view from that as has been taken in the aforesaid judgments. If the non-fulfilment of the export quota allocated to the appellant was on account of any ban or embargo put on exports, the appellant ought to have surrendered the un-fulfilled quota. The appellant admittedly did not do so and now cannot be permitted to wriggle out of his liability for penalty on the said ground.
16. There is no merit in the appeal, which is dismissed with costs of Rs.10,000/- on the appellant payable to the respondent No.2 AEPC within six weeks hereof.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE SEPTEMBER 30, 2014/'bs' LPA No.185/2010 Page 8 of 8