Dulari Exports Pvt. Ltd. vs Secretary, Ministry Of Textiles & ...
2009 Latest Caselaw 5187 Del

17

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 5068/2007


      DULARI EXPORTS PVT. LTD            ..... Petitioner
                     Through Mr. Vivek Kohli, Ms.Pankhuri Jain,
                     advocates.

                   versus


      SECRETARY MINISTRY OF TEXTILES, & ORS..... Respondents
                     Through Mr. Prem B. Kshetri, advocate.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                   ORDER

% 14.12.2009

By the impugned Order dated 23rd January, 2007, the 2nd Appellate Committee, Government of India, Ministry of Textiles has upheld forfeiture of Rs.17,03,180/- imposed on the petitioner- M/s.Dulari Exports Pvt. Ltd. for failure to fulfill their export obligation under the quota allotted to them for the period ending 31 st December, 2004. The 2nd Appellate Committee while dismissing the appeal has recorded as under:

"3. The 2nd Appellate Committee considered the appeal of the above appellant in its meeting held on 23.01.2007. Shri Pankaj Gupta & Shri Shaji George appeared on behalf of the appellant firm at the hearing of the 2nd Appellate Committee. The contention of the Appellant Firm is that on account of Tsunami and shifting of their factory premises, shipment was delayed beyond stipulated time along with commercial issues like heavy embroidery work for which the firm was

WPC No.5068/2007 Page 1 granted extension by the buyer. The Committee considered the above issues in detail. It was noted that overall performance was 74%. Accordingly the Committee does not find any merit in the appeal and ordered the forfeiture for an amount of Rs.17,03,180/-. The case was disposed of accordingly."

2. The impugned Order passed by the 2nd Appellate Committee is cryptic and brief and does not give any reasons. It merely records that the Committee has considered the issues in detail. No reasoning has been stated.

3. The contention of the petitioner is that due to Tsunami which had struck South India on 26th December, 2004, the petitioner could not make exports and there was shortfall. It is stated that the case is covered under exemption clause of force majeure. In this connection, learned counsel for the petitioner has also relied upon two invoices dated 5th January, 2005 and 10th January, 2005. It is stated that the customs clearance was granted on or before 15th January, 2005. It is further stated that in case of one consignment, the goods were cleared by the Customs on 13th January, 2005 but the air way bill was issued on 17th January, 2005 as there was huge backlog of shipments which had to be cleared. The petitioner also relies upon a certificate dated 28th December, 2004 issued by Nikkon Air Freight Services Pvt. Ltd. It is also the contention of the petitioner that if these shipments are taken into consideration, the petitioner would be entitled to substantial relief as the shortfall in exports would be less than 25% and accordingly only proportionate deduction/forfeiture was required to be made.

4. As the matter is being remanded back to the 2nd Appellate Authority for afresh consideration, I need not go into the said aspects. However, the petitioner will file all necessary documents including Government documents to prove and establish that the shipments were ready on or before 31st December, 2004 and

WPC No.5068/2007 Page 2 because of Tsunami there was delay.

5. Accordingly, the impugned Order dated 23rd January, 2007 is set aside and the matter is remanded back to the 2nd Appellate Committee to decide the appeal filed by the petitioner on merits. The petitioner will file necessary documents within four weeks and produce the originals at the time of hearing. The appeal of the petitioner will be disposed of within six months from the date copy of this Order is received.

6. It is clarified that this Court has not expressed any opinion on the merits of the case and whether petitioner's case is covered by force majeure clause or Circulars. The observations made in this Order are for disposal of the Writ Petition and will not be binding on the second Appellate Authority.

SANJIV KHANNA, J.

      DECEMBER 14, 2009
      P




WPC No.5068/2007                                                Page 3