Dmt 1 wp1436-11 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1436 OF 2009 M/s. National Telecom of India Ltd., & Ors. .... Petitioners. vs. Union of India & Ors. .... Respondents. Mr. D.B. Shroff, Sr. Adv. with Mr. Karl K. Shroff, Mr. Arun H. Mehta, Ms. Payal Parikh and Ms. Vrushali Malkar i/by Akshar Laws for the Petitioners. Mr. Rui Rodrigues with Mr. A.M. Sethana and Mr. N.R. Prajapati for Respondents. CORAM : DR. D.Y. CHANDRACHUD & A.A. SAYED, JJ. DATE : 23 SEPTEMBER 2011. P.C. Dmt 2 wp1436-11 The challenge in these proceedings under Article 226 of the Constitution is to an order dated 15/26 May 2009 passed by the Government of India in appeal against an order dated 17 April 2008 of the Joint Director General of Foreign Trade. By an order of adjudication the Joint Director General of Foreign Trade had in terms of Section 11 (2) of the Foreign Trade (Development & Regulation) Act, 1992 imposed a penalty of Rs. 22.38 crores upon the Petitioners for default in performing their export obligation. The 1st Petitioner had obtained an advance licence dated 5 August 1988 for the import of 7 items of a total CIF value of Rs. 4,47,61,860/- with an obligation to export 7 items for a total FOB value of Rs.7,81,88,885/- A notice of demand was issued to the Petitioners on the basis that there was a failure of compliance together with an opportunity of a personal hearing by the Licensing Authority. Eventually, upon adjudication, the Joint Director General of Foreign Trade imposed a penalty of Rs.22.38 crores which was confirmed in appeal. 2. During the course of the hearing of these proceedings, the Petitioners have filed an affidavit dated 21 June 2011 stating that the State Bank of India, Back Bay Reclamation, Nariman Point Branch, has issued bank realization certificates in respect of the exports which the Petitioners Dmt 3 wp1436-11 claim to have made in fulfilment of their export obligation. Photo copies of those certificates are annexed as Exhibit “A”, “B” and “C” respectively to the Affidavit. 3. The Appellate Authority noted that several opportunities were granted to the Petitioners to produce relevant documents to demonstrate fulfilment of the export obligation, but, the Petitioners had not produced complete documents. The relevant observations in the order passed by the Appellate Authority are as follows :- “It is observed that the Appellant has produced only exchange Central copy of licence, which is incomplete. No other copy of license/DEEC-II is submitted to find out the fulfillment of export obligation, with reference to the part documents. Only certain documents have been made without any co-relation with the export obligation and it is not possible to conclude that the Appellant has completed the export obligation as stated in the appeal. Their statement in the appeal, that the original documents were submitted before the Jt. DGFT, Mambai cannot be accepted for the reason that the adjudication order very clearly states that Dmt 4 wp1436-11 original export documents were not submitted. In case they had submitted documents, the Appellant should have produced documentary evidence to this effect to counter the finding the adjudication order. As long as this is not done, there is no justification or ground to interfere with the Order- in-Original passed by Jt. DGFT, Mumbai.” The Appellate Authority also noted that though an opportunity was granted to the Petitioners to produce original documents or to take recourse to Public Notice No. 79 dated 6 January 2006 and Public Notice No. 80 dated 15 September 2008, the Petitioners did not produce the original documents. 4. Learned Counsel appearing on behalf of the Petitioners submits that the Petitioners have during the course of these proceedings now produced bank realization certificates attested by the State Bank of India which would demonstrate that the export obligation was duly fulfilled. Hence he has sought a remand to the adjudicating authority to enable the Petitioners to have an opportunity to establish fulfilment of the export obligation. Mr. Rodrigues for the Respondents has not opposed the request and relied on the provisions of Public notice 80 of 15 September Dmt 5 wp1436-11 2008 which according to him lays down the procedure to be followed. 5. We are of the view that it would be appropriate and proper if the authenticity of the Bank realisation certificates is duly verified and considered by the Adjudicating Authority while determining whether the Petitioners had in fact fulfilled the export obligation and had complied with all the terms and conditions of the advance licence including by carrying out the export obligation and receiving the remittance of foreign exchange representing the FOB value of the goods exported. This is a question of fact which must be decided by the Competent Authority. From a reading of the impugned order of the Joint Director General of Foreign Trade it is clear that the Petitioners were granted several opportunities. Since during the pendency of these proceedings the Petitioners have produced copies of Bank realisation certificates on affidavit, we are of the view that it would be in the interest of justice if the Petitioners are permitted to establish before the Adjudicating Authority that they have complied with all the requisite terms and conditions of the advance licence and that they have received the remittance of foreign exchange. 6. In the circumstances, the ends of justice would be met if we Dmt 6 wp1436-11 set aside the impugned order dated 15/26 May 2009 passed by the Additional Director General of Foreign Trade and the order dated 17 April 2008 passed by the Joint Director General of Foreign Trade and remit the proceedings back to the Joint Director General of Foreign Trade for examining the issue afresh. Learned Counsel appearing on behalf of the Respondents has no objection if an opportunity is granted to the Petitioners to produce the relevant bank realization certificates before the Adjudicating Authority. Ordered accordingly. 7. We clarify that we have not expressed any view one way or the other on the authenticity of the bank realization certificates which have been produced by the Petitioners with an affidavit before this Court and it would be open for the Authority to determine as to whether all the terms and conditions of the advance licence were duly fulfilled. 8. The Petition is disposed of in these terms. No order as to costs. 9. Rule, accordingly, stands discharged. (A.A. SAYED, J.) (DR. D.Y. CHANDRACHUD, J) Dmt 7 wp1436-11