Kerala High Court
M/S A.S.Marine Industries Pvt.Ltd vs Foreign Trade Development Officer on 9 December, 2019
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
W.P.(C)Nos.33431/2019 & conn.cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941
WP(C).No.33431 OF 2019(D)
PETITIONER/S:
M/S A.S.MARINE INDUSTRIES PVT.LTD.
AP.2/268 SHANA MARINE PRODUCTS BUILDING, ALLEPPEY-
688534 REPRESENTED BY IT'S MANAGING DIRECTOR,
FAIZAL.A.AS
BY ADVS.
SRI.ANIL D. NAIR
SRI.M.BALAGOPAL
SRI.SREEJITH R.NAIR
SHRI.GOKULRAJ L.
SMT. ARYA ANIL
SMT.SRI HARINI S.P.
RESPONDENT/S:
FOREIGN TRADE DEVELOPMENT OFFICER
GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND
INDUSTRY, DEPARTMENT OF COMMERCE, OFFICE OF THE
JOINT DIRECTOR GENERAL OF FOREIGN TRADE 5TH FLOOR,
KENDRIYA BHAVAN, KAKKANAD, KOCHI-682037
SRI.JAISHANKAR V NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.12.2019, ALONG WITH WP(C).33432/2019(D), WP(C).33443/2019(E),
WP(C).33461/2019(G), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)Nos.33431/2019 & conn.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941
WP(C).No.33432 OF 2019(D)
PETITIONER/S:
M/S. FREEZE EXIM
XII/1001-C, PANAYAPILLY, KOCHI-682002 REPRESENTED
BY ITS MANAGING PARTNER SHRI.M.USMAN KOYA
BY ADVS.
SRI.ANIL D. NAIR
SRI.M.BALAGOPAL
SMT.R.DEVIKA (ALAPPUZHA)
SRI.R.SREEJITH
SHRI.GOKULRAJ L.
SMT. ARYA ANIL
RESPONDENT/S:
FOREIGN TRADE DEVELOPMENT OFFICER
GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND
INDUSTRY, DEPARTMENT OF COMMERCE, OFFICE OF THE
JOINT DIRECTOR GENERAL OF FOREIGN TRADE 5TH FLOOR,
KENDRIYA BHAVAN, KAKKANAD, KOCHI-682037
SRI.JAISHANKAR V NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.12.2019, ALONG WITH WP(C).33431/2019(D), WP(C).33443/2019(E),
WP(C).33461/2019(G), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)Nos.33431/2019 & conn.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941
WP(C).No.33443 OF 2019(E)
PETITIONER/S:
M/S. FRONTLINE EXPORTS PVT. LTD
1/828, INDUSTRIAL ESTATE, AROOR-688534, REPRESENTED
BY ITS MANAGING DIRECTOR SHRI.NIYAS KOYA
BY ADVS.
SRI.ANIL D. NAIR
SRI.M.BALAGOPAL
SMT.R.DEVIKA (ALAPPUZHA)
SRI.R.SREEJITH
SHRI.GOKULRAJ L.
SMT. ARYA ANIL
SMT.SRI HARINI S.P.
RESPONDENT/S:
FOREIGN TRADE DEVELOPMENT OFFICER
GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND
INDUSTRY, DEPARTMENT OF COMMERCE, OFFICE OF THE
JOINT DIRECTOR GENERAL OF FOREIGN TRADE 5TH FLOOR,
KENDRIYA BHAVAN, KAKKANAD, KOCHI-682037
ADV. KUM.S.KRISHNA
SRI.JAISHANKAR V NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.12.2019, ALONG WITH WP(C).33431/2019(D), WP(C).33432/2019(D),
WP(C).33461/2019(G), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)Nos.33431/2019 & conn.cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941
WP(C).No.33461 OF 2019(G)
PETITIONER/S:
M/S DOLPHIN WIRES PVT.LTD
AP II/722, INDUSTRIAL ESTATE, AROOR, ALLEPPEY-
688534, REPRESENTED BY IT'S MANAGING DIRECTOR,
SRI.JABIR K.A.
BY ADVS.
SRI.ANIL D. NAIR
SRI.M.BALAGOPAL
SMT.R.DEVIKA (ALAPPUZHA)
SRI.SREEJITH R.NAIR
SHRI.GOKULRAJ L.
SMT. ARYA ANIL
SMT.SRI HARINI S.P.
RESPONDENT/S:
FOREIGN TRADE DEVELOPMENT OFFICER
GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND
INDUSTRY, DEPARTMENT OF COMMERCE, OFFICE OF THE
JOINT DIRECTOR GENERAL OF FOREIGN TRADE 5TH FLOOR,
KENDRIYA BHAVAN, KAKKANAD, KOCHI-682037
ADV. SRI.N.S.DAYA SINDHU SHREE HARI
SRI.JAISHANKAR V NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.12.2019, ALONG WITH WP(C).33431/2019(D), WP(C).33432/2019(D),
WP(C).33443/2019(E), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)Nos.33431/2019 & conn.cases 5
JUDGMENT
[ WP(C).33431/2019, WP(C).33432/2019, WP(C).33443/2019, WP(C).33461/2019 ] In all these writ petitions, the petitioners challenge the orders of the Joint Director General of Foreign Trade (JDGFT), produced as Ext.P5 in all the writ petitions, which find that the petitioners had erroneously claimed the MEIS benefits on export of Leather Jacket Fish which fell in the family of 'Carangidae' meriting classification under HS Code 0303 8999 of the ITCHS Code, which classification was not included for the MEIS benefits during the period when the exports were effected. The JDGFT finds that the export benefits during the relevant period were applicable only to fish belonging to the 'Salmonidae' family, and the petitioners had erroneously showed the Leather Jacket Fish exported by them as classifiable under HS Code 03031900 that applied to the 'Salmonidae' family, for claiming the benefit under the MEIS scheme. In the light of the said finding the JDGFT directed the petitioners to surrender the un-utilised MEIS scrips available with them before the said office, and also directed that, till the exporters surrendered the un-utilised scrips, or furnished Customs Receipts evidencing payment of the scrip value and interest, in terms of the Foreign Trade (Regulation) Rules, read with the Foreign Trade (Development & Regulation) Act, the petitioners' company would be put under the Denied Entity List (DEL) which denies any further benefits from the said office.
2. The contention of the learned counsel for the petitioners is that, in passing the said orders, the JDGFT exceeded its jurisdiction under the Foreign Trade (Development & Regulation) Act and Rules in that, on a matter of classification it is only the Customs authorities who have the final say with regard W.P.(C)Nos.33431/2019 & conn.cases 6 to whether or not the exported goods conformed to a particular classification under the ITC HS classification.
3. I have heard Sri.Anil D. Nair, the learned counsel for the petitioners and Sri. Jaishankar V. Nair, the learned Central Government Counsel for the respondents.
4. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find myself unable to accept the contention of the learned counsel for the petitioners, that the Joint Director General of Foreign Trade did not have a jurisdiction to issue the orders that are impugned in the writ petitions aforementioned. While it may be a fact that under the Customs Act the Customs authorities do look into the classification of a commodity for the purposes of recovery of the Customs duty evaded or avoided at the time of import/export of goods, it does not follow that the JDGFT is denuded of its jurisdiction with regard to the matters covered by the Foreign Trade (Development & Regulation) Act and Rules. In the instant case the action taken by the JDGFT is traceable to the power conferred on him under the Foreign Trade (Development & Regulation) Act, 1992 and hence, so long as the JDGFT has only found that there has been mis- classification, and consequent mis-declaration of goods, by the petitioners while claiming and receiving export benefits, he cannot be seen as acting without jurisdiction, or in excess of jurisdiction, while taking remedial action against the petitioner exporters. I, therefore, find that there is no jurisdictional error occasioned by the JDGFT while passing the orders impugned in these writ petitions. I also find that as per the Foreign Trade (Development & Regulation) Act and Rules, there is an appeal provided against the impugned orders of the JDGFT, before the DGFT, which the petitioners can effectively pursue. Thus, W.P.(C)Nos.33431/2019 & conn.cases 7 without prejudice to the right of the petitioners to move the appellate authority for appropriate reliefs, the writ petitions in their challenge against Ext.P5 orders, are dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sd W.P.(C)Nos.33431/2019 & conn.cases 8 APPENDIX OF WP(C) 33431/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED 24.7.2019 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 27.09.2019 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 24.10.2019 EXHIBIT P4 TRUE COPY OF REPLY DATED 21.11.2019 EXHIBIT P5 TRUE COPY OF ORDER DATED 28TH NOVEMBER, 2019 sd W.P.(C)Nos.33431/2019 & conn.cases 9 APPENDIX OF WP(C) 33432/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SHOW CASUE NOTICE DATED 24.7.2019 EXHIBIT P2 TRUE COPY OF PROCEEDINGS DATED 27.09.2019 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 24.10.2019 EXHIBIT P4 TRUE COPY OF REPLY DATED 21.11.2019 EXHIBIT P5 TRUE COPY OF ORDER DATED 28TH NOVEMBER 2019 Sd vb W.P.(C)Nos.33431/2019 & conn.cases 10 APPENDIX OF WP(C) 33443/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED 24.7.2019 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 27.09.2019 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 24.10.2019 EXHIBIT P4 TRUE COPY OF REPLY DATED 21.11.2019 EXHIBIT P5 TRUE COPY OF ORDER DATED 28TH NOVEMBER, 2019 W.P.(C)Nos.33431/2019 & conn.cases 11 APPENDIX OF WP(C) 33461/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED 24.7.2019 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 27.09.2019 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 24.10.2019 EXHIBIT P4 TRUE COPY OF THE REPLY DATED 21.11.2019 EXHIBIT P5 TRUE COPY OF ORDER DATED 28TH NOVEMBER 2019 EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.03.2018 EXHIBIT P7 TRUE COPY OF THE REPLY DATED 06.09.2019 sd