PNP 1 WP1864-18.7.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1864 OF 2010 Milton Exports ..Petitioner. versus The 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. Pradeep S. Jetly with Mrs. S.V. Bharucha for the Respondents. ...... CORAM : DR.D.Y.CHANDRACHUD & ANOOP V. MOHTA, JJ. 18 July 2011. P.C. : 1. On 17 July 2010 an order was passed by the Joint Director General of Foreign Trade by which a penalty of Rs.16 lacs was imposed on the Petitioner and its partners for contravening the provisions of Section 11(2) of the Foreign Trade (Development and Regulation) Act 1992 read with Rules 13 and 14(1) and (2) of the Foreign Trade (Regulation) Rules 1993. The adjudicating authority noted that an advance licence was issued to the Petitioner to import raw material without the payment of customs duty required for the manufacture of resultant products meant for export. However, according to the authority, the Petitioner neglected to furnish the original export documents as required by the licensing authority and though the Petitioner was advised on several occasions to submit the original shipping bills and bank realisation certificates along with PNP 2 WP1864-18.7.sxw duly audited DEEC Books, the Petitioner failed to do so. 2. The order of the adjudicating authority was carried in appeal. While disposing of the appeal, the Director General of Foreign Trade noted in his order dated 22 December 2009 that the Petitioner, despite ample opportunities had not submitted the prescribed export documents to the licensing authority. Hence, the finding of the adjudicating authority that the Petitioner imported raw material against the advance licence, but did not fulfill the export obligation was confirmed. 3. This Petition, it is common ground, formed part of a batch of 17 petitions under Article 226 of the Constitution between the same parties. On 27 April 2011, a Division Bench of this Court consisting of Mr. Justice J.P. Devadhar and Mr. Justice A.A. Sayed disposed of Writ Petition 1517 of 2011 in terms of Minutes of Order tendered by the Petitioners and the Respondents. 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. PNP 3 WP1864-18.7.sxw 4. The Court has been informed that the present Petition was delinked from the earlier batch. The Petition has now been placed on Board and has been taken up for final hearing on the request of Counsel appearing on behalf of the Petitioner and Counsel appearing on behalf of the Respondents. 5. The grievance of the Petitioner is that they had furnished, as a matter of fact, sufficient evidence to indicate the fulfillment of the export obligations. That apart, it has been submitted that a consolidated statement was filed before the Court on behalf of the Director General of Foreign Trade reflecting the status of each of the 17 petitions. As regards Writ Petition 1864 of 2010 the comment of the Director General of Foreign Trade in the tabulated statement was that the Petitioner may be asked to submit copy of complete set of “ licence so as to examine eligibility for redemption . Both the order ” of the Joint Director General of Foreign Trade as well as the order passed by the Additional Director General of Foreign Trade in appeal proceed on the basis that the Petitioner had not furnished any documents from the licensing authority to establish its case that the export obligations were fulfilled despite ample opportunities. The submission of the Petitioner is that as a matter of fact the original documents were furnished to the Director General of Foreign Trade and even thereafter duplicate documents have been furnished, as in other cases. In our view, particularly having regard to the fact that the appeal has been dismissed by the Appellate Authority, on account of an objection relating to the non-submission of requisite documents, an opportunity should be granted to the Petitioner to reargue the PNP 4 WP1864-18.7.sxw case in appeal in order to establish before the authorities that all the requirements under the law have been duly fulfilled. In order to facilitate this, and without expressing any view on the merits of the rival contentions, we set aside the impugned order of the Joint Director General of Foreign Trade dated 17 July 2008 and of the Additional Director General of Foreign Trade dated 22 December 2009 and remit the proceedings back for a fresh decision on merits to the Joint Director General of Foreign Trade. We clarify that we had no occasion to express any view one way or the other on the merits of the rival contentions which are kept open to be urged before the adjudicating authority. The Petition is accordingly disposed of. (Dr. D.Y. Chandrachud, J.) (Anoop V. Mohta J.)