Karnataka High Court
M/S Aditya Birla Nuvo Ltd vs Union Of India on 28 June, 2019
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.54747 OF 2014 (GM-RES)
BETWEEN:
M/S ADITYA BIRLA NUVO LTD.,
(FORMERLY INDIAN RAYON AND
INDUSTIES LIMITED)
REGENT INFIGNIA, MUNCIPAL NO.414,
100FT ROAD, 4TH BLOCK,
KORAMANAGALA,
BANGALORE-560 095.
REP. BY SUDHAKARAN
... PETITIONER
(BY SRI RAVI RAGHAVAN, ADV., FOR
SRI HARISH R., ADV.,)
AND:
1. UNION OF INDIA
THROUGH ITS SECRETARY
MINISTRY OF TEXTILES,
GOVERNMENT OF INDIA,
UDYOG BHAVAN,
NEW DELHI-110 011.
2. THE DIRECTOR GENERAL
APPAREL EXPORT PROMOTION COUNCIL,
NBCC TOWER, 15, BHIKAJI CAMA PALCE,
NEW DELHI-110 066.
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3. THE DEPUTY DIRECTOR
APPAREL EXPORT PROMOTION COUNCIL,
NO.10, RAHEJA CHAMBERS,
12, MUSEUM ROAD,
BANGALORE-560 001.
4. THE TEXTILE COMMISSIONER
NEW C.G.O BUILDING,
48, NEW MARINE LINES,
MUMBAI-400 020.
5. THE MEMBER SECRETARY
THE 2ND APPELLATE COMMITTEE,
MINISTRY OF TEXTILES
(EXPORTS II SECTION)
ROOM NO.339-A, UDYOG BHAWAN,
NEW DELHI-110 011.
6. SR. DIRECTOR
APPAREL EXPORT PROMOTION COUNCIL,
NO.10, RAHEJA CHAMBERS,
12, MUSEUM ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI S.R.DODDAWAD, CGC FOR
SRI C.SHASHIKANTH, ASG)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI QUASHING ORDER DTD.8.7.2014 PASSED
BY THE R-5 VIDE ANNEXURE-A TO THE W.P; DIRECT THE
RESPONDENTS TO CONDONE THE DELAY OF THE
PETITIONERS IN FULFILLING THE EXPORT QUOTA, DUE
TO FORCE MAJEURE CONDITIONS AND DIRECT THE
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RESPONDENTS TO REFUND THE BANK GUARANTEE EN-
CAHSED BY R-3 AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This is the second round of litigation by the petitioner for a writ of certiorari to quash order No.14/322/2005-IT dated 08.07.2014 passed by respondent No.5 vide Annexure-A and for a writ of mandamus directing the respondents to condone the delay of the petitioner in fulfilling the export quota, due to force majeure conditions and also direct the respondents to refund the Bank Guarantee encashed by respondent No.3.
2. It is the case of the petitioner that they engaged inter alia in manufacture and export of garments to the United States of America, Canada and the European Union, in terms of the quota allotted to it 4 by the Apparel Export Promotion Council under the Ministry of Textiles, Government of India. The petitioner has been duly completing their obligations in respect of the various quotas allotted to them. During the calendar year 2004 the petitioner was allotted certain quotas in terms of which the petitioner was required to manufacture and export the quantities of garments allotted to it. In terms of the policy, an exporter is required to utilize the quota by September of the year and for the balance quantities, if any, the exporter can get the quota revalidated on furnishing a bank guarantee for a sum arrived at on the basis of the quantity remaining to be exported and at the rate specified in the policy. Accordingly, in the month of September, 2004, the petitioner got revalidated certain quantities to be exported on execution of a bank guarantee for Rs.58,40,640/-.
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3. Due to certain reasons beyond its control, the most important of them being the massive Tsunami disaster that took place on 24.12.2004, the petitioner could not export the required quantities of garments although the garments were ready for export. Due to Tsunami, the Quality Inspectors of the customers could not visit India in time for inspection of the garments. The further Tsunami warnings also created a situation of uncertainty. As a result, the petitioner achieved the exports only by mid February, 2005.
4. It is the further case of the petitioner that, in view of the above, respondent No.3 issued a showcause notice to the petitioner proposing to forfeit bank guarantee provided by the petitioner on the ground that the petitioner had not utilized the export quota allotted to it. Immediately, the petitioner filed objections to the said showcause notice. Respondent No.3 passed an order dated 10.06.2005 forfeiting the bank guarantee to 6 the extent of Rs.32,08,840/- in proportion to the export made till 15.01.2005 and ignoring the exports made thereafter. Therefore, the petitioner was forced to file an appeal before respondent No.4. Respondent No.4 by order dated 27.09.2005 rejected the appeal filed by the petitioner. Aggrieved by the said order, the petitioner filed an appeal before the 2nd Appellate Committee.
5. The 2nd Appellate Committee after hearing both the parties by an order dated 16.11.2005 felt that there are no grounds for review of the findings of the 1st Appellate Committee. Accordingly, the appeal came to be dismissed. Aggrieved by the said order, the petitioner filed W.P.No.11905/2006 before this Court. The learned Single Judge of this Court after hearing both the parties by an order dated 23.01.2009 rejected the writ petition. Challenging the same, the petitioner filed W.A.NO.1261/2009 before the Division Bench of this Court. By an order dated 30.08.2012 the Division 7 Bench of this Court allowed the appeal and the order passed by the 2nd Appellate Committee dated 16.11.2005 and the order passed by the learned Single Judge in W.P.No.11905/2006 dated 23.01.2009 came to be set aside and remanded the matter to the 2nd Appellate Committee-respondent No.5 therein for fresh consideration in accordance with law after hearing both the parties affording reasonable opportunity to both the parties. Thereafter, the 2nd Appellate Committee by an impugned order dated 08.07.2014 rejected the appeal and uphold the order dated 27.09.2005. Hence, the petitioner has filed the present writ petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Ravi Raghavan, learned counsel for the petitioner has contended that the impugned order passed by the 2nd Appellate Committee is contrary to the direction issued by the Division Bench of this Court in 8 W.A.No.1261/2009. The Division Bench of this Court while setting aside the earlier orders passed by the 2nd Appellate Committee as well as the learned Single Judge has specifically directed the 2nd Appellate Committee to pass fresh orders after affording reasonable opportunity to both the parties. Though, hearing was given, the 2nd Appellate Committee has not considered the objections filed by the petitioner before the 1st Appellate Committee earlier and not recorded any reasons with reference to the objections filed. Therefore, the impugned order cannot be sustained.
8. He further contended that the 2nd Appellate Committee has erred in holding that the petitioner has not produced any documentary evidence in support of the shipment which were effected due to Tsunami claim. In fact, in the writ petition, the petitioner has filed an affidavit who has specifically contended that he has produced all the documents before respondent Nos.3 9 and 4. Respondent No.5 refused to accept the documents on the ground that the petitioner had no new evidence to produce. Therefore, he submits that the findings recorded by the 2nd Appellate Committee are erroneous. Therefore, he contended that the petitioner has taken the specific contention in the objections with regard to embargo under Catg.USA/340 and change in buying strategy of their buyer i.e., M/s Marks & Spencer and disturbances on account of Tsunami Cyclone. None of the contentions urged or raised in the objections by the petitioner has been considered by the 2nd Appellate Committee. Therefore, he sought to allow the writ petition by quashing the impugned order.
9. Per contra, Sri S.R.Doodawad, learned CGC on behalf of Sri C.Shashikanth, learned ASG appearing for the respondents while reiterating the contentions urged in the statement of objections has contended that in pursuance of the direction issued by the Division 10 Bench of this Court sufficient opportunity has been provided to the petitioner and this Court cannot interfere by exercising power under Articles 226 and 227 of the Constitution of India. Accordingly, he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is not in dispute that the respondents allowed certain quotas in terms of which the petitioner was required to manufacture and export the quantities of garments allotted to it. It is the specific case of the petitioner that the petitioner got revalidated certain quantities to be exported on execution of a bank guarantee for Rs.58,40,640/-. Due to certain reasons beyond its control, the most important of them being the massive Tsunami disaster that took place on 24.12.2004, the petitioner could not export the required quantities of garments although garments were ready for export. Respondent No.3 issued a showcase notice to 11 the petitioner proposing to forfeit bank guarantee on the ground that the petitioner had not utilized the export quota allotted to it. The petitioner filed objections. Without considering the objections filed by the petitioner, respondent No.3 has passed perpetual order on 10.06.2005 which was subject matter of appeal before respondent Nos.4 and 5 who confirmed the original order passed by respondent No.3.
11. It is also not in dispute that aggrieved by the 1st Appellate Committee's order dated 16.11.2005, W.P.No.11905/2006 came to be filed before this Court. It is also not in dispute that the learned Single Judge by an order dated 23.01.2009 rejected the writ petition. It is an undisputed fact that aggrieved by the order of the learned Single Judge, the petitioner filed W.A.No.1261/2009. The Division Bench of this Court after considering the entire material on record at paragraph Nos.5 and 6 held as under:
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"5. Mr.Devdass, learned senior counsel appearing for the respondents though made an attempt to support the orders, we are unable to accept the same for the following reasons: On perusal of Annexure-W there are four paragraphs in the entire order. In none of the paragraphs grounds urged by the appellant before the second appellate committee is considered. Therefore, we are of the opinion that the order of the second appellate committee is without application of mind and without considering the grounds urged by the appellant. Second appellate committee is required to give reasonings and consider the grounds urged by the appellant and finding was required to give on the grounds urged by the appellant. Without doing so, appeal has been dismissed. This point has not been considered by the learned single Judge. In view of the same, order of the learned single Judge suffers from infirmity.
6. In the result, the appeal is allowed. Order passed by the second 13 appellate committee dated 16.11.2005 as per Annexure-W and the order passed by the learned single Judge in W.P.No.11905/2006 dated 23.01.2009 are hereby set aside. Matter is remanded to the second appellate committee R-5 herein, for fresh consideration in accordance with law after hearing both the parties affording reasonable opportunity to both the parties".
12. Unfortunately, the petitioner has not filed any new objections and not produced any new documents, but he has reiterated the objections filed before 1st and 2nd Appellate Committees on earlier occasion.
13. Though, the affidavit filed before the learned Single Judge, the same has not been produced after remanding of the matter before the 2nd Appellate Committee. The 2nd Appellate Committee reiterating the process of the proceedings at para 1 to 6 has proceeded to held that the personal hearing was held on 14 17.06.2014. Therefore, Sri Saji Raj Manjooran attended the hearing on behalf of the appellant firm and reiterated what they had mentioned before the 1st & 2nd Appellate Committees earlier. However, they did not submit any documentary evidence in support of their shipment, which were affected due to Tsunami claim. It is also held that the shipment affected due to Tsunami was to be shipped out on or before 15th January, 2005. However, the appellant firm effected shipments after 15th January, 2005 and as such no relief is admissible. Accordingly, the 2nd Appellate Committee rejected the appeal. The 2nd Appellate Committee ought to have considered the documents and objections filed by the petitioner before the 1st and 2nd Appellate Committees on earlier occasion. The same has not been done except using the word no documentary evidence is produced in support of their shipment, which were affected due to Tsunami claim. Absolutely, there is no discussion in the order.
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14. The 2nd Appellate Committee has failed to notice that when the Division Bench of this Court while allowing the appeal set aside both the order passed by the 2nd Appellate Committee as well as the order passed by the learned Single Judge and also directed for fresh consideration in accordance with law which means they should consider the objections and documents produced by the petitioner afresh. With reference to the documents and objections, 2nd Appellate Committee should have proceeded to pass order, but 2nd Appellate Committee reiterating the earlier paragraphs, only at paragraph Nos.7 and 8 has passed the impugned order. Absolutely, there is no discussion for not considering the objections and documents in the order.
15. It is the duty of the 2nd Appellate Committee to follow the direction issued by the Division Bench of this Court, which clearly indicates that the 2nd Appellate Committee has no respect for the Court's order, so also 16 to the objections and documents produced by the petitioner, which ought to have been considered afresh, but the same has not been done. It is the mistake on the part of both the petitioner as well as the 2nd Appellate Committee, which resulted in passing the impugned order, obstructing the process of this Court.
16. For the reasons stated above, the impugned order passed by the 2nd Appellate Committee cannot be sustained and the same is against the direction issued by the Division Bench of this Court in W.A.No.1261/2009 dated 30.08.2012.
17. In view of the above, writ petition is allowed. The impugned order passed by the 2nd Appellate Committee in Order No.14/322/2005-IT dated 08.07.2014 is hereby quashed. The matter is remitted back to 2nd Appellate Committee to proceed afresh strictly in accordance with law. The petitioner is also permitted to file fresh objections along with the 17 documents to prove his case. If such objections along with the documents in support of his contentions are filed within a period of four weeks, the 2nd Appellate Committee shall consider the objections after affording opportunity to both the parties and pass a speaking and reasoned order without following the earlier procedure and pass orders strictly in accordance with law within a period of eight weeks from the date of filing of objections along with documents by the petitioner.
Ordered accordingly.
Sd/-
JUDGE PB