PNP 1 WP864-18.7.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.864 OF 2011 WITH WRIT PETITION NO.893 OF 2011 WITH WRIT PETITION NO.1509 OF 2011 WITH WRIT PETITION NO.1533 OF 2011 Milton Exports ..Petitioner. versus Union of India and others ..Respondents. ..... Mr. V. Shreedharan with Mr. Prakash Shah and Mr. Ayush Agarwal i/b M/s. PDS Legal for the Petitioner. Mr. Riyaz Chagla with Mr. G. Hariharan and Mr. N.R. Prajapati i/b Dr. T.C. Kaushik for the Respondents. ...... CORAM : DR.D.Y.CHANDRACHUD & ANOOP V. MOHTA, JJ. 18 July 2011. P.C. : 1. Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petitions are taken up for hearing and final disposal. 2. In these proceedings under Article 226 of the Constitution, the Petitioners have questioned the legality of orders passed by the Additional Director General of Foreign Trade confirming the PNP 2 WP864-18.7.sxw imposition of a penalty by the Joint Director General of Foreign Trade, under Section 11(2) of the Foreign Trade (Development and Regulation) Act 1992. These Petitions were placed for hearing together with a batch of 17 Petitions. By an order of a Division Bench consisting of Mr. Justice J.P. Devadhar and Mr. Justice A.A. Sayed Writ Petition 1517 of 2011 was disposed of in terms of Minutes of Order. As a matter of fact, the Court is informed that 11 other Petitions were similarly disposed of. The Minutes of Order read as follows : 1. In view of the undertaking and indemnity given by the Petitioners in Writ Petition No.860 of 2011 and contained in the affidavit of Mr. Sanjay Shukla dated 27 April 2011, the impugned order is set aside; 2. In the event the Respondents or the Customs Authorities find, that the export proceeds are not realized, they will be at liberty to adopt such proceedings as may be permissible in law; 3. Rule is made absolute in the aforesaid terms; 4. No order as to costs. 3. These Petitions, the Court has been informed, were delinked from the batch of Petitions. A tabulated statement, it is common ground, was placed on the record of the Court. The tabulated statement contains a reference to (i) the quantity of the export obligation as per licence; (ii) value of the export obligation as per the licence; (iii) quantity of the export obligation actually fulfilled; (iv) value of the export obligation actually fulfilled; (v) percentage of payment realized and (vi) percentage of quantity exported. PNP 3 WP864-18.7.sxw 4. In case of Writ Petition 864 of 2011 it has been stated that 99.73% of the payment was realized, whereas 102.09% of the quantity exported was duly realized. The objection appears to be that there is a shortfall of the export obligation in value terms. In Writ Petition 1533 of 2011 it has been stated in the tabulated statement that 95.19% of the export obligation in value terms was realized and the percentage of quantity exported was 118.39%. In Writ Petition 893 of 2011 it has been set out in the tabulated statement that 97.90% of the export obligation in value terms was realized while 113% of the quantity was exported. In Writ petition 1509 of 2011 the percentage realized in terms of value and quantity are 79.43% and 72.73%. 5. From the tabulated statement which has been submitted on behalf of the Director General of Foreign Trade, it would appear that the principal objection is on the ground that the entire value of the export obligation has not been fulfilled. As we have noted earlier, the percentage of fulfillment varies from case to case being 99.73% (Writ Petition 864 of 2011); 95.19% (Writ Petition 1533 of 2011); 97.90% (Writ petition 893 of 2011) and 79.43% (Writ Petition 1509 of 2011). Having regard to these facts, we are of the view that it would be necessary for the Court to remand the proceedings back to the Joint Director General of Foreign Trade as this aspect, which has now been brought before the Court in the tabulated statement has not been considered. In order to facilitate a fresh decision on remand, we quash and set aside the orders passed by the Joint Director General of Foreign Trade and by the Additional Director General of Foreign Trade and remand all the proceedings back to the Joint Director General of Foreign Trade for a fresh decision on merits. PNP 4 WP864-18.7.sxw 6. All the rights and contentions of the parties are kept open. The Petitions are accordingly disposed of. (Dr. D.Y. Chandrachud, J.) (Anoop V. Mohta J.)