*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th July, 2011
+ W.P.(C) 5830/2008
M/S RAKHEJA ENTERPRISES ..... Petitioner
Through: Mr. Raja Chatterjee & Mr. Sachin
Das, Advs.
Versus
UOI & ANR. ..... Respondents
Through: Mr. Rajesh Rawal, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 22nd August, 2006 of the Second
Appellate Committee of the Ministry of Textiles, Government of India
dismissing the Second Appeal preferred by the petitioner against the order
dated 8th June, 2006 of the First Appellate Committee dismissing the First
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Appeal of the petitioner. The First Appeal had been preferred against the
speaking order dated 25th August, 2005 of the respondent No.2 Apparel
Export Promotion Council (AEPC) imposing forfeiture of `20,12,418/- on
the petitioner owing to non fulfillment by the petitioner of terms and
conditions of quota allotment.
2. The speaking order dated 25th August, 2005 of the respondent No.2
AEPC records that the petitioner failed to attend the personal hearing and /
or to submit any reply to the show cause notice issued to it. The amount to
be forfeited was computed after taking into account the proof of shipment /
documents / overall utilization as available on record.
3. A perusal of the order dated 8th June, 2006 of the First Appellate
Committee shows that the contention of the petitioner therein was of being
covered under the “Force Majeure” condition. The First Appellate
Committee held the petitioner to be not so covered.
4. The Second Appellate Committee in its order dated 22 nd August, 2006
has recorded that the petitioner has failed to submit the necessary proof of
shipments inspite of time of 18 months having been given to it. The Second
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Appellate Committee accordingly confirmed the forfeiture; however a relief
of `3,50,361/- was granted to the petitioner, reducing the amount forfeited to
`16,62,057/-.
5. The counsel for the petitioner contends that the said amount has
already been forfeited and received by the respondent No.2 AEPC. The
counsel for the respondent No.2 AEPC also confirms the said position.
6. The counsel for the petitioner however contends that the petitioner
had during the relevant period effected the requisite exports and no forfeiture
ought to have been effected.
7. After hearing the counsels and on a perusal of the orders aforesaid, it
is borne out that the petitioner neither before the respondent No.2 AEPC nor
before the First or the Second Appellate Committee produced the documents
to show that the requisite exports had been effected by it. The only
argument of the counsel for the petitioner is that since copies of the
documents of export are retained by the respondent No.2 AEPC also, the
respondent No.2 AEPC has incorrectly, on the basis of its records,
concluded that the requisite exports have not been effected.
W.P.(C) No.5830/2008 Page 3 of 6
8. The counsel for the respondent No.2 AEPC controverts. He contends
that the documents are required to be submitted by the member exporter to
the respondent No.2 AEPC. He further states that the documents may be
available in the records but the proof of shipment (POS) is to be submitted
by the member exporter.
9. The finding that the petitioner has not effected the requisite exports is
a finding of fact. The petitioner is unable to show that there is any perversity
in the findings of the three successive fora as aforesaid. In the
circumstances, no case for judicial review is made out and the petitioner is
not found entitled to any relief in the petition.
10. Be that as it may, it is felt that since the matter relates to inferences to
be drawn from documents and that neither should the respondent No.2
AEPC be unduly enriched nor should petitioner be prejudiced, another
opportunity be granted to the petitioner for showing documents and
reconciliation of the accounts, but subject to the condition that such
opportunity / reconciliation shall be done as a “referee” within the meaning
of Section 20 of the Evidence Act, 1872 i.e. whatsoever be the finding on the
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said reference, the same shall be treated as an admission of the petitioner and
thus be binding on the petitioner. The imposition of such condition is felt
necessary inasmuch as in the facts and circumstances aforesaid, the
petitioner is otherwise not found entitled to second chance and so that the
procedure directed to be so adopted does not result in a fresh round of
litigation. The counsel for petitioner is agreeable to the same.
11. It has been enquired from the counsels as to which of the three fora
aforesaid would be most competent to go into the said accounts and
documents. After hearing, it has been agreed that the said exercise be
undertaken by the First Appellate Committee.
12. Accordingly, though no merit is found in the case of the petitioner and
the petitioner is not found entitled to any relief by way of right, however,
only by way of indulgence, a fresh opportunity is granted to the petitioner, to
produce all the documents on which it seeks to rely upon to contend that the
forfeiture effected is wrongful and or excessive, on or before 12 th August,
2011 before the First Appellate Committee. The petitioner to appear before
the First Appellate Committee in the first instance on any date which may be
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given of after 12th August, 2011 by the First Appellate Committee and
thereafter if necessary on such further dates as may be fixed. It is made
clear that the petitioner shall not be entitled to more than two hearings unless
so deemed necessary by the First Appellate Committee. The First Appellate
Committee after going through the documents produced by the petitioner to
pass an order as to whether the amount forfeited from the petitioner is
justified or not. The said finding of the First Appellate Committee shall be
binding on the petitioner as an admission and the petitioner would not have
any right of further challenge thereto.
Needless to state that in the event it is found that the forfeiture already
effected is unjustified or excessive, the petitioner shall be entitled to refund /
adjustment of such amount / excess amount, however, without any interest
till the date of such determination.
No order as to costs.
Dasti under signature of the Court Master.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 12, 2011/„gsr‟
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