Kerala High Court
Bhavani Erectors Pvt. Ltd vs Union Of India on 5 November, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 19111 OF 2021
PETITIONER:
M/s.BHAVANI ERECTORS PVT. LTD,
BHAVANI TRADE CENTRE,
HIGH SCHOOL JUNCTION,
KARUNAGAPPALLY, KOLLAM - 691 515,
REP. BY ITS DIRECTOR,
JIJESH V.PILLAI, AGED 37 YEARS,
S/O.VISWANATHAN PILLAI,
BHAVANI, HIGH SCHOOL JUNCTION,
KARUNGAPPALLY, KOLLAM - 691 515.
BY ADVS.
SRI.PRAVEEN K. JOY
SRI.E.S.SANEEJ
SRI.M.P.UNNIKRISHNAN
SRI.M.K.SAMYUKTHA
SRI.N.ABHILASH
SRI.DEEPU RAJAGOPAL
SRI.SANDRA S.KUMAR
RESPONDENTS:
1 UNION OF INDIA,
REP. BY SECRETARY,
MINISTRY OF COMMERCE AND TRADE,
NEW DELHI - 110 011.
2 THE DIRECTOR GENERAL,
DIRECTORATE OF FOREIGN TRADE,
UDYOG BHAVAN, NEW DELHI, PIN - 110 011.
3 THE ADDITIONAL DIRECTOR GENERAL OF
FOREIGN TRADE,
"C AND E" WING, 6TH FLOOR,
KENDRIYA SADAN, 2ND BLOCK,
KORAMANGALA, BENGALURU - 560 034.
WP(C) No.19111/2021
:2 :
4 THE JOINT DIRECTOR,
GENERAL OF FOREIGN TRADE,
DGFT, RA-KOCHI, VTH FLOOR,
AL-BLOCK, KENDRIYA BHAVAN,
KAKKANADU, ERNAKULAM, PIN - 682 037.
ADDL.5 THE SENIOR INTELLIGENCE OFFICER,
OFFICE OF THE DIRECTORATE OF REVENUE
INTELLIGENCE,
BANGALORE ZONAL UNIT SITE NO. 8(P) 2,
1ST STAGE, 3RD BLOCK,
OPP. BDA COMPLEX, HBR LAYOUT,
KALYAN NAGAR POST, BANGLORE-560043.
(IMPLEADED AS PER ORDER DATED 11-10-2021 IN IA
2/2021 IN WP(C) NO. 19111/2021).
BY ADV SRI.GIRISH KUMAR.V., CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.19111/2021
:3 :
JUDGMENT
~~~~~~~~~ Dated this the 5th day of November, 2021 The petitioner, which is a Company working in the field of construction, has approached this Court seeking to set aside Exts.P1 and P3 and to direct the 3 rd respondent to take up and pass final orders on Exts.P2, P4 and P5 objections within a time limit fixed by this Court.
2. The petitioner entered into an agreement with Bharat Heavy Electricals Limited (BHEL), Sudan. The said Company had earlier entered into a contract with National Electricity Corporation of Sudan Government. The agreement entered into by the petitioner with BHEL was a sub contract for executing the works at Thermal Power Station, Kosti. While so, the Sudanese Thermal Power Generating Company Limited, which is a company generated for running of Thermal Power Projects, entered into an agreement with the petitioner. WP(C) No.19111/2021 :4 : When the petitioner raised bills, the Additional Director General of Foreign Trade initiated proceedings against the Company referring to two audit objections.
3. By Ext.P1, the petitioner was informed that the petitioner has entered into an agreement with BHEL for erection, testing, commissioning and trial operation of Boilers and auxiliaries Power Plant in Kosti, Sudan and nine invoices were raised directly to M/s.Sudanese Thermal Power Generating Company Limited and remitted by M/s.Bhavani International Limited, Dubai. As the policy does not permit rewards to service providers who provide service through commercial presence in any other country, foreign exchange remitted by the group company is not eligible for SEIS Scrip. The petitioner was therefore required to pay back the value of scrip with interest on urgent basis failing which action under FTDR Act will be initiated against the company. The petitioner submitted Ext.P2 explanation.
4. Subsequently, the petitioner was served with another identical notice, Ext.P3, on 18.03.2021. In Ext.P3 WP(C) No.19111/2021 :5 : also, the petitioner was informed that the policy does not permit rewards to service providers who provide service through commercial presence in any other country, FE routed/remitted by group company is not eligible for SEIS Scrip. The petitioner submitted Ext.P4 reply to the said notice.
5. The petitioner would contend that the Government had extended certain beneficial schemes to the exporters in the country and those benefits are provided to both service exporters as well as exporters of goods. It is in continuation of the same that the Service Exports from India Scheme (SEIS) has been introduced in 2015 as a part of the new Foreign Trade Policy 2015-2020. Under the said polity, the petitioner was given the benefits. The respondents approved Scrips gained by the petitioner. The audit objection in respect of the same came two years thereafter. The petitioner submits that the petitioner has submitted a comprehensive reply to Exts.P1 and P3 by way of Ext.P5. The respondents are compellable to consider the explanation given by the petitioner and desist from proceeding with Exts.P1 and P3.
WP(C) No.19111/2021:6 :
6. I have heard the learned counsel for the petitioner, the learned Central Government Counsel appearing for respondents 1 to 4 and the learned Standing Counsel for the additional 5th respondent.
7. After considering the grievance raised by the petitioner, this Court is of the considered view that Exts.P1 and P3 have been issued to the petitioner based on audit objections dated 03.03.2020 and 18.12.2020. The petitioner has given explanation regarding the objections as contained in Ext.P5 representation. Therefore, the respondents are liable to consider the explanation granted by the petitioner and finalise the proceedings taking into account the explanation. The writ petition therefore can be disposed of giving appropriate direction to the respondents.
Accordingly, the writ petition is disposed of directing the 3rd respondent-Additional Director General of Foreign Trade to consider Ext.P5 representation submitted by the petitioner and pass appropriate orders thereon, after giving an opportunity of hearing to the petitioner. The 3 rd respondent WP(C) No.19111/2021 :7 : will be at liberty to hear the petitioner through virtual mode. A final decision shall be taken within a period of two months. It is made clear that this Court has not pronounced anything on merits of the claim of the petitioner. No coercive action shall be taken against the petitioner till a final decision is taken by the 3rd respondent on Ext.P5.
Sd/-
N. NAGARESH, JUDGE aks/06.11.2021 WP(C) No.19111/2021 :8 : APPENDIX OF WP(C) 19111/2021 PETITIONER'S EXHIBITS:
Exhibit P1 THE TRUE PHOTOCOPY OF THE NOTICE WITH FILE NO.07/21/094/80018/AM18 ISSUED BY THE FOREIGN TRADE DEVELOPMENT OFFICER ON BEHALF OF THE 3RD RESPONDENT DATED 3/12/2020.
Exhibit P2 THE TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 23/02/2021.
Exhibit P3 THE TRUE PHOTOCOPY OF THE NOTICE ISSUED WITH FILE NO.07/21/098/80067/AM19 BY THE FOREIGN TRADE DEVELOPMENT OFFICER ON BEHALF OF THE 3RD RESPONDENT DATED 18/03/2021.
Exhibit P4 THE TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 31/03/2021.
Exhibit P5 THE TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 06/09/2021.
Exhibit P6 TRUE COPY OF THE LETTER DATED 30-08- 2021 ISSUED BY PETITIONER TO THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE.
SR