West Coast Industries (Exports) ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 889 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The petitioner's quota was revalidated during the year 1997. Coupled with this revalidation was the petitioner's obligation for shipment of a certain extent. The non-shipment entailed the forfeiture of the EMD/LUT/BG. In this case the amount was Rs34,34,184/-. The petitioner could not meet its export obligations, as a result of which a show cause notice was issued and thereafter the AEPC passed a speaking order dated 23.01.1999.

2. Being aggrieved by the said order, the petitioner preferred an appeal before the Textile Commissioner where, under the rules, the petitioner contended that its case would be covered under the 'Force Majeure' clause. The issue of a transporter strike was taken as a ground for invoking the Force Majeure clause. However, the Textile Commissioner, after considering the records of the case, held that the petitioner could not substantiate its claim that its performance was affected because of any Force Majeure conditions as applicable in view of para 13 of the Ministry of Textile (Government of India's) notification No. 1/50/96-EP(T&J)-I dated 16.10.1996. Accordingly, the speaking order was upheld and the appeal was dismissed.

3. Being aggrieved, the petitioner filed a second appeal before the Second Appellate Committee and there the petitioner raised the new plea that there was, in fact, no transporters' strike but that there was a go-slow and a strike in the factory itself. With regard to this plea, the Second Appellate Committee categorically observed that when the Committee members asked the representative of the petitioner as to why the plea was not taken before the Textile Commissioner, there was no reply from the said representative. It is further recorded in the impugned order of Second Appellate Committee that the representative could not present the file of the unit which would indicate the period during which the alleged strike was on. It is further recorded that the file has also not been presented despite time having been given to the petitioner in the earlier hearing held on 08.09.2001. As regards the plea of transporters' strike also, it was recorded that the said plea which had earlier been taken before the First Appellate Committee was not pressed before the Second Appellate Committee. In view of these statements, the Second Appellate Committee did not find any merits in the appeal and the appeal was accordingly rejected by an order dated 08.03.2003.

4. It is this order of the Second Appellate Committee which is impugned in the present writ petition. In exercise of jurisdiction under Article 226 of the Constitution, this Court does not sit as a Court of Appeal and does not normally interfere with findings of fact unless some perversity is pointed out. It is more concerned with the decision making process than the decision itself. In the facts and circumstances of the present case, we find that there is no jurisdictional error and there is no illegality in the decision making process. Accordingly, the order passed by the Second Appellate Committee cannot be interfered with.

5. Learned counsel for the petitioner submits that in cases where 75% of the export obligation is met, the EMD/LUT/BG is forfeited proportionately as per the actual obligation that is fulfillled. According to the learned counsel for the petitioner it has met more than 75% of the revalidated quota obligation. However, this is not borne out by the facts of the case as recorded, particularly, in the First Appellate order wherein it is indicated that the quota utilised was 65.58%. However, learned counsel for the petitioner submits that at that point, he did not submit the entire proof and that he has been able to get all the proof of meeting the entire export obligations only thereafter. The petitioner had, therefore, submitted a representation dated 20.01.2003 whereby the petitioner had given its revised calculation of performance statement and had requested that the penalty/forfeiture be reduced proportionately in view of the fact that, according to it, its export performance was 76.68%. The respondents are directed to consider this representation and dispose of the same in accordance with law on its own merits.

6. The writ petition is disposed of accordingly. Parties shall bear their own costs.