{"id":52190,"date":"2002-11-14T00:00:00","date_gmt":"2002-11-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/global-polybag-industries-p-ltd-vs-the-joint-development-on-14-november-2002"},"modified":"2017-05-29T22:09:13","modified_gmt":"2017-05-29T16:39:13","slug":"global-polybag-industries-p-ltd-vs-the-joint-development-on-14-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/global-polybag-industries-p-ltd-vs-the-joint-development-on-14-november-2002","title":{"rendered":"Global Polybag Industries (P) Ltd vs The Joint Development … on 14 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Global Polybag Industries (P) Ltd vs The Joint Development … on 14 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN  THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 14\/11\/2002\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE E.PADMANABHAN\n\nWRIT PETITION NO. 37545 of 2002\nAND\nWPMP.No: 56354 of 2002\n\n\nGlobal Polybag Industries (P) Ltd.,\n500A, Perali Road,\nVirudhunagar 625 002                            ..Petitioner\n\n-Vs-\n\n\n1. The Joint Development Commissioner,\n   Madras Export Processing Zone\n   Tambaram, Chennai-45\n\n2. The Assistant Commissioner of Central Excise\n   Virudhunagar\n\n3. The Commissioner of Central Excise\n   Madurai                                      ..Respondents\n\n\n\nFor petitioner:: Mr.C.Natarjan S.C., for\n                  M\/s.N.Inbarajan & N.Sriprakash\n\nFor respondents: Mr.V.T.Gopalan\n                  Addl.Solicitor General\n               assisted by Mr.S.Gajendrandran (ACGSC)\n\n        Petition filed under Article 226 of The Constitution of India  praying\nfor the issue of a writ of certiorari, as stated therein.\n\n:O R D E R\n<\/pre>\n
        The writ petitioner herein prays for the issue of a writ of certiorari
\nto call for the records relating to the proceedings of the first respondent in
\nNo.19\/30\/95-EOU-TN-Vol.II, dated 16.8.2002 and quash the same.\n<\/p>\n
        2.  Heard  Mr.    C.Natarajan,  learned  counsel  appearing  for  M\/s.
\nInbarajan and Mr.N.Sri Prakash for  the  petitioner,  Mr.V.T.Gopalan,  learned
\nAdditional Solicitor General, appearing for Mr.S.Gajendran, Additional Central
\nGovernment Standing  Counsel for the respondents.  With the consent of counsel
\non either side the writ petition was taken up for final disposal.\n<\/p>\n
        3.  The petitioner a private limited company claims that it is a 100 %
\nExport Oriented Unit governed by the Export Import Policy (EXIM Policy) having
\nsecured the  status  in  the  year  1995.    According  to  the  policy,   the
\nmanufacturing  Unit  should  be  100%  export oriented, the Unit should export
\ngoods and services etc., The export oriented unit may import  without  payment
\nof  duty  all  types  of  goods including capital goods as defined in the EXIM
\npolicy required for its activity.  The export oriented unit may procure  goods
\nrequired by it or in connection with its activity without payment of duty from
\nbonded  warehouses in the domestic tariff area set up under the policy and the
\nUnit is permitted to effect Domestic Tariff Area sale of its products  upto  a
\npercentage of  the  FOB  value of the export.  The petitioners have set up the
\nEOU (Export Oriented Unit) for the manufacture of HDPE plastic  bags,  sheets,
\ntapes  and  rolls  for  which  the  duty free import of raw material is virgin
\nplastic granule.  The petitioners have established export performance  earning
\nforeign exchange  to  a  considerable  extent.   The petitioners have earned a
\ntotal Domestic Tariff Area sales permission to the extent of  Rs.30.87  crores
\nunder several orders on the export of the manufactured goods.\n<\/p>\n
        4.   It  is  claimed that the petitioners have established the Foreign
\nExchange realisation by the production of the Export Invoices, Bank  Statement
\netc., The bank has also certified the earnings of foreign exchange by exports.
\nThe  export performance is also supported by movement records from the factory
\nof the petitioners to the customs, including Excise  Gate  Passes  and  Excise
\nAR-4 Forms.    While  so,  there  was an inspection on 12.1.2001 by a group of
\nEnforcement Officers  of  the  Central  Excise  Department  who  purported  to
\ninvestigate the matters pertaining to the petitioner EOU.\n<\/p>\n
        5.   After  the inspection a show cause notice was issued by the third
\nrespondent on 26.3.2002 running to 130  pages.    The  petitioners  have  also
\ncollected  materials and submitted their explanation or objection, denying the
\nallegations, besides pointing out that there is no  violation  at  all.    The
\nallegations  being  the  secured  raw materials have been sold and not used in
\nmanufacturing thereby questioning the very fact of the export performance  and
\nresulting  in  the  total  rejection  and the condemnation in all official and
\ncommercial documents of the Excise Department, Customs as  well  as  the  Bank
\ndocuments.\n<\/p>\n
        6.   The  petitioners were granted time to submit their objection till
\n30.9.2002.  It is represented that objections have been filed pending the writ
\npetition.  The petitioners are awaiting a hearing and orders  of  adjudication
\nare likely to be passed at any time.\n<\/p>\n
        7.   The  first  respondent  served  the  impugned  proceedings  dated
\n16.8.2002 suspending the DTA Sales of  the  petitioners  and  the  permissions
\ngranted therefor.  Such suspension it is stated being issued with the approval
\nof the Development  Commissioner.   The petitioners moved the respondent.  But
\nthere has been no response for revoking the order of suspension.  All  efforts
\nto  convince  the first respondent to withdraw the suspension failed and hence
\nthe petitioners have come before this court.\n<\/p>\n
        8.  According to the petitioners the order suspending the DTA approved
\norders of the Development Commissioner issued from time  to  time  is  per  se
\narbitrary  and  illegal  and  violative  of  Articles  14  and 19(1)(g) of The
\nConstitution of India, that  the  first  respondent  has  no  jurisdiction  or
\nauthority  to  suspend  or  cancel  the  approval  given  based  on the export
\nperformance of the petitioners by  the  Development  Commissioner  by  several
\norders, passed  between  11.6.1997 and 26.2.2002.  Merely because a show cause
\nnotice has been issued it cannot be taken that the petitioners are  guilty  of
\nviolations of the omissions or commissions.\n<\/p>\n
        9.   It  is contended further that the show cause notice itself is for
\nthe period commencing from 1.9.198 to 12.1.12001 while the DTA sales have been
\nauthorised for the prior period from 1996-97 to 1997-1 998  and  therefore  it
\ncannot be  proceeded  against  or suspended.  The suspension is per se illegal
\nand violative of the policy and liable to be quashed.  It is further contended
\nthat if the suspension is not quashed the petitioner will be  put  to  serious
\nhardship and  loss.    The  petitioners  are  effecting  DTA  sales as per the
\nexisting policy and the privilege had been earned and by sale  of  rejects  or
\nwaste, no  prejudice will be caused to the respondents.  There is no provision
\nin the EXIM policy or Hand Book by which the impugned  order  can  be  passed.
\nHence the present writ petition.\n<\/p>\n
        10.  The first respondent filed a counter affidavit.  According to the
\nrespondent  100%  EOU scheme provides for grant of permission for setting up a
\nnew undertaking\/unit which is valid for three years and  the  undertaking  not
\nbeing  established within three years, a further extension of time for another
\nThere years is permissible.   The  permission  would  be  granted  subject  to
\ncertain conditions stipulated in the Annexures to the permission.  In the case
\nof   the   petitioners   such   permission   for  manufacture  and  Export  of
\nHM\/HDPE\/LDPE\/PP sheets, Tubes and Bags  was  granted  on  8.6.1995  for  three
\nyears.  The petitioners commenced manufacture with effect from 1996.  Once the
\nnew unit is established, it is governed by the legal undertaking, which letter
\nof undertaking specifically provides that the Unit\/ undertaking would be bound
\nto  abide by the policy as well as any direction issued by the Government from
\ntime to time.  DTA sales under the EXIM policy provides  that  permission  for
\nDTA sale shall be granted only if an EOU achieves the prescribed minimum value
\nAddition\/NFEP (Net Foreign Exchange Earning as a percentage of Exports) during
\nthe relevant period.  As per the guidelines an EOU duly certified by Chartered
\nAccountant  and  Central Excise Authorities, the Development Commissioner will
\ndetermine the extent of DTA sale admissible and issue authorisation  in  terms
\nof value.    The  DTA sale shall be at the rate of50% of FOB value of exports.
\nThe word exports has been defined in FTDR Act as goods  taken  out  of  India.
\nTherefore  though  DTA  sales  in foreign currency are counted fro calculating
\nfulfillment of export obligation the same is not taken account of  for  fixing
\nthe entitlement of DTA sale.\n<\/p>\n
        11.  The Commissioner of Central Excise by its letter dated 23.7 .2002
\nreported  that  the  plastic  granules imported by the company as raw material
\nwithout payment of customs duty were being  removed\/  diverted  unauthorizedly
\nfrom  their private bonded warehouse and sold locally and in order to cover up
\nthe diversion, the company  inflated  the  weight  and  value  of  the  export
\nconsignments.   It is also reported that the company has shown inflated weight
\nand value in the export documents not only to cover up the diversion but  also
\nto show  that  it  has  achieved  the  required  export obligation.  Since the
\ncontents of the letter of the Department of Central Excise was  of  a  serious
\nnature,  the  office  of  the  Development  Commissioner  took  the  action of
\nsuspending DTA sale permission that had already been granted.   The  DTA  sale
\npermission as  such  had  not  been  cancelled.    The  petitioners sought for
\nclarification and it was clarified  on  25.9.2002  indicating  that  they  can
\ncontinue to clear waste and rejects.\n<\/p>\n
        12.   The contention that suspending the DTA approval is arbitrary and
\nillegal is devoid of merits.  DTA permission is a facility given to EOUs based
\non the FOB value of exports and if the FOB  value  of  exports  itself  is  in
\ndoubt, the  question  of  permitting  DTA  sale  does not arise.  The DTA sale
\npermission under Para 9.9(b)  of  the  EXIM  policy  1997-2002  entailed  only
\nconcessional  duty,  this  would  have  resulted  in  heavy loss of revenue to
\nGovernment.\n<\/p>\n
        13.  According to the second respondent the total  customs  duty  thus
\nevaded  by  the  assessee  is  Rs.16,13,10,303  and the Central Excise duty is
\nRs.4,65,456\/=.  In view  of  the  serious  nature  of  allegations  the  first
\nrespondent initiated action suspending the DTA sale permission.  But the first
\nrespondent  has not stopped the imports and exports and normal function of the
\ncompany, but has only passed order suspending the  DTA  sale  on  concessional
\nduty,  which  is  supported  by  para  6 of the Legal Undertaking given by the
\npetitioner.  DTA sales have been  granted  only  for  a  periods  1996-97  and
\n1997-98,  the  validity  of  the  DTA  sale  permission  would have expired on
\n31.3.2002 and 31.3.2001 respectively and the same is no longer available.  The
\npetitioners are not restrained from doing its normal activities of import  and
\nexport which  is  the  object  of the licence granted as a 100% EOU.  Only DTA
\nSales have been suspended and not cancelled.  There are absolutely no  merits.
\nThe writ petition deserves to be dismissed.\n<\/p>\n
        14.  The points that arise for consideration are:-\n<\/p>\n
        (a)     Whether  DTA Sale is part of the licence and before suspending
\nthe licence, the procedure prescribed has to be followed?\n<\/p>\n
        (b)     Whether there could be a suspension of DTA Sales on the  facts
\nof the case?\n<\/p>\n
        (c.)    Whether  the  order of suspension of DTA Sales is liable to be
\nquashed as arbitrary and violative of the Rules or  Regulations  contained  in
\nthe EXIM policy?\n<\/p>\n
        (d)     To what relief, if any?\n<\/p>\n
        15.   In  exercise  of powers conferred under section 5 of the Foreign
\nTrade (Development and Regulations) Act, 1992, the Central Government
\nnotified the Export and Import Policy for the  period  1997-2002,  which  came
\ninto force with effect from 1st April 1997 and to remain in force for a period
\nof five  years.    The Central Government also has reserved its right to amend
\nthe policy in exercise of its powers  conferred  by  Section  5  of  the  Act.
\nChapter  III of the Policy defines various expressions, such as Capital Goods,
\nConsumables, Draw Back, Export obligation, licensing year, manufacture,  rules
\netc.,  Chapter  IV  prescribes  the  general  provision  regarding exports and
\nimports.  Clause 4.6 prescribes the terms and conditions of licence.    Clause
\n4.6 reads thus:-\n<\/p>\n
        “4.6 Every licence shall be valid for the period of validity specified
\nin the licence and shall contain such terms and conditions as may be specified
\nby the licensing authority which may include:\n<\/p>\n
        (a)     The quantity, description and value of          the goods;\n<\/p><\/blockquote>\n
        (b)     Actual User condition\n        (c.)    Export Obligations\n        (d)     The value addition to be achieved, and\n        (e)     The minimum export price.\"\n\n<\/pre>\n
        16.  Clause 4.12 mandates that every exporter or importer shall comply
\nwith  the  provisions  of  The Foreign Trade (Development and Regulation) Act,
\n1992 and the Rules and Orders made thereunder.  Chapter V provides for imports
\non export basis.  Chapter VI relates to Export Promotion capital goods scheme.
\nChapter VII provides the duty exemption scheme.  Clause 7.4  of  this  Chapter
\nprescribes the  export  obligation.  Clause 7.25 provides for duty entitlement
\npass book.  Chapter IX provides for Export Oriented  Units,  Units  in  Export
\nProcessing Zones  etc.,  Clause  9.1  prescribes  the eligibility.  Clause 9.9
\nprovides for DTA  sales  subject  to  certain  restrictions  towards  rejects.
\nClause  9.9(e) enables an Export Oriented Unit to sell finished products which
\nare freely importable under the Policy in the DTA over and  above  the  levels
\npermissible under sub paragraph (b) and (c) of this Chapter against payment of
\nfull  duties,  provided  they have achieved on an annual basis, the stipulated
\nNFEP and export obligation.  Clause 9.15 enumerates the various  benefits  for
\nEOU\/EPZ Units.  The same Chapter provides for bonding and debonding in respect
\nof bonded warehouse.    Chapter  X  provides  for  deemed exports.  Chapter XI
\nprovides for exports.\n<\/p>\n
        17.  There  is  no  doubt  that  in  terms  of  the  EXIM  policy  the
\npetitioners have  established  a EOU Unit.  The Foreign Trade (Development and
\nRegulation) Act, 1992 provides for development and regulation of foreign trade
\nby facilitating imports into, and augmenting the exports from, India  and  for
\nmatters connected  therewith  or incidental thereto.  Section 2(g) defines the
\nexpression “licence”.  Section 2(h) defines the expression “order” and Section
\n2(i) defines the expression ” prescribed” as prescribed by rules made  in  the
\nAct.   Under  section  3,  the  Central  Government  may  make  provision  for
\ndevelopment and regulation of foreign trade.  Section 5  enables  the  Central
\nGovernment  from  time  to  time  to formulate and announce Export a nd Import
\npolicy.  Section 9 provides for issue, suspension and cancellation of  licence
\nwhich  would  include  licence  granted  as  may  be prescribed under the Act.
\nSection 11 deals with contravention of provisions of the Act, Rules orders and
\nEXIM policy.  Section 11(5) provides for confiscation.   Section  12  provides
\nfor penalty.    Thus, it is clear that for violation of the policy there could
\nbe an action under section 11 as well as Section 12 of the Act.  For violation
\nof EXIM policy or the licence granted thereunder in favour of  a  EOU  or  DTA
\nSales  which is part of the licence conditions, there could be an action under
\nsection 11 or 12.  Such a licence also can be  suspended  or  cancelled  under
\nSection 9.\n<\/p>\n
        18.  Section  19 provides for framing of Rules.  In exercise of powers
\nconferred by Section 19 of The Foreign Trade (Development and Regulation) Act,
\n1992, the Central Government has framed the Rules.    Rule  2(e)  defines  the
\n“policy”  meaning  the  export and meaning, policy formulated and announced by
\nthe Central Government.  Rule  4  prescribes  the  application  for  grant  of
\nlicence.   Rule  6  (2) prescribes that the goods covered by the licnece shall
\nnot be disposed except in accordance with the provisions of the policy  or  in
\nthe manner  specified  by  the  licensing  authority  in  the licence.  Rule 9
\nprovides for suspension of licence granted.  Rule 10 provides for cancellation
\nof licence.  Rule 11 and 12 provides for Declaration as to value  and  quality
\nof the imported goods.\n<\/p>\n
        19.    According   to  Mr.C.Natarajan,  learned  senior  counsel,  the
\nsuspension of DTA Sale, a privilege conferred on the petitioner, being part of
\nthe licence granted  under  the  EXIM  Policy  read  with  the  Foreign  Trade
\n(Development  and  Regulation)  Act  and  the Rules framed thereunder, without
\nfollowing the procedure prescribed,  there  could  be  no  suspension  of  the
\nlicnece  and  without  the precondition stipulated by the Rules and compliance
\nthereof, there could be no suspension.\n<\/p>\n
        20.  Per contra, Mr.V.T.Gopalan, learned Additional Solicitor  General
\ncontends  that  what  has  been  suspended  is  not a licence but the right in
\nrespect of DTA sales and it is in terms  of  the  undertaking.    The  learned
\nSolicitor  General contended that it is not a licence, nor it is a part of the
\nlicence and therefore  the  rules  do  not  apply  and  the  communication  of
\nsuspension  which  is only an interim suspension is valid and it is not liable
\nto be interfered by this court under Art.26 of The Constitution.\n<\/p>\n
        21.  The EXIM policy lays down establishment of EOU Units,  import  of
\ngoods  without  levy  of  duty, export of goods and after achieving the export
\nobligation it also enables the EOU to dispose of part of its products  in  the
\nlocal market.   The said three limbs of the policy or licence form part of the
\nlicence.  A licence cannot be divided into compartments as it is a  bundle  of
\nrights  which  confers the privilege or obligation in respect of EOU under the
\nExport and Import Policy.  The  policy  has  been  framed  by  virtue  of  the
\nstatutory  powers  conferred under section 5 of the Foreign Trade (Development
\nand Regulation) Act.  Therefore the policy as notified is also impressed  with
\nthe  character  of  a  statutory  Notification  and  hence there cannot be any
\ncontroversy in this respect.\n<\/p>\n
        22.  As seen from the policy, the EOU is established in terms the EXIM
\npolicy.  Under the policy EOU is permitted to import goods free of duty.   The
\nEOU  has  to export, which export is free of various levies or duties or taxes
\nand the EOU is also conferred with the privilege of DTA sales.    The  licence
\nconsists  of  all the three privileges or obligation and it is a comprehensive
\none, besides form part of the licence granted to the  petitioner.    The  said
\nlicence  consists  of  three  facets  and  it  being a comprehensive cannot be
\ncompartmentalised for any purpose.\n<\/p>\n
        23.  A perusal of the licence, the permission granted in favour of the
\npetitioner, which is a 100% EOU, the unit is enabled to effect sale  of  goods
\nmanufactured  in  DTA  Sales  as  prescribed by the Policy and those sales are
\nsubject to levy of excise duty.  Condition 3 of the licence reads thus:-\n<\/p>\n
        “3.  The finished products authorised for manufacture under the scheme
\nshall be exempt from payment of excise  duties  on  their  export  from  India
\nsubject to  the  observance of the prescribed procedures.  Export duties shall
\nbe leviable unless specifically exempted.  The sale of goods  manufactured  in
\nDTA  would  be  permitted  as per prescribed policy and excise duties shall be
\nlevied as per prescribed rates.  The clearance  of  rejects,  waste  or  scrap
\nmaterial  rags, trimmings, etc., shall be governed by the provisions of policy
\nas notified from  time  to  time  and  clearance  by  customs  authorities  in
\naccordance with their notifications.”\n<\/p>\n
        24.   A  perusal  of the licence would show that all the three facets,
\nviz., Export, Import and DTA sale form the licence.  It may be  that  the  EOU
\nmay  not  effect DTA sales, but depending upon the market condition it is open
\nto the EOU to effect DTA Sales or export the entire  product  manufactured  by
\nit.   The  DTA  sale is part of the licence which the EOU earns dependign upon
\nits performance in the Export obligation and on being  satisfied  the  EOU  is
\ngranted permission  to  effect  DTA  sale  as part of licence.  Therefore on a
\nreading of the Act, the Rules and the Policy and the licence conditions,  this
\ncourt  sustains  the contention of Mr.C.Natarajan, learned senior counsel that<\/p>\n
DTA sale is part of the licence  and  it  is  a  licence  by  itself  and  the
\ncontention  to the contra advanced by the learned Additional Solicitor General
\ncannot be countenanced.\n<\/p>\n
        25.  The learned senior counsel appearing for the  petitioner  rightly
\nreferred  to a notification namely the General Exemption Notification No.55 in
\nsupport of his interpretation that the DTA sale is  a  licence  in  accordance
\nwith  the provisions as found in sub-paragraphs (a)(b)(c) and (d) of paragraph
\n9.9 or of paragraph 9.20 of the EXIM  policy,  dated  1st  April  1997.    The
\nmaterial portion of the Notification reads thus:-\n<\/p>\n
“EXEMPTION TO ALL EXCISABLE GOODS PRODUCED IN 100% EOU, FTZ, EHTP OR STP UNITS
\nWHEN SOLD IN INDIA:- In exercise of the powers conferred by sub section (1) of
\nSection  5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central
\nGovernment, being satisfied that it is necessary in the public interest so  to
\ndo,  hereby  exempts  all excisable goods (hereinafter referred to as the said
\ngoods) specified in the Schedule to the Central Excise Tariff Act, 1985 (5  of
\n1986)  and  produced  or  manufactured  in  a hundred per cent export oriented
\nundertaking or a free trade zone or an Electronic Hardware Technology  Park  (
\nEHTP) unit or a Software Technology )arks (STP) Unit and allowed to be sold in
\nIndia  under and in accordance with the provisions of Sub paragraphs (a)(b)(c)
\nand (d) of paragraph 9.9 or of paragraph 9.20 of the Export and Import Policy,
\n1, April, 1997 till 31 March, 2002,  from  so  much  of  the  duty  of  excise
\nleviable  thereon  under  Section  3 of the said (Central Excise Act) as is in
\nexcess of the amount calculated at the rate of fifty per cent of each  of  the
\nduties  of customs, which would be leviable under the Customs Act, 1962 (52 of
\n1962) or under any other law for the  time  being  in  force,  read  with  any
\nnotification  for the time being in force in respect of the duty so chargeable
\non the like goods produced or manufactured  outside  India  if  imported  into
\nIndia.”\n<\/p>\n
        26.   Further  attention  of  the court was drawn to the definition of
\nlicence as defined in Section 2 (g) of the Foreign  Trade  (  Development  and
\nRegulation) Act, 1992.  The very nature of Licence under the Scheme definitely
\nmeans not only a licence to import or export, but includes a customs clearance
\npermit and any other permission issued like DTA Sales or grant under the Act.\n<\/p>\n
        27.   Section 9 of the Foreign Trade (Development and Regulation) Act,
\n1992 provides for suspension and cancellation of licence.  Sub section (4)  of
\nSection 9 reads thus:-\n<\/p>\n
        “(4)  The Director General or the officer authorised under sub section
\n(2) may, subject to such  conditions  as  may  be  prescribed,  for  good  and
\nsufficient  reasons,  to be recorded in writing, suspend or cancel any licence
\ngranted under this Act.\n<\/p>\n
        Provided that no such suspension or cancellation shall be made  except
\nafter  giving  the  holder  of  the  licence a reasonable opportunity of being
\nheard.”\n<\/p>\n
        28.  When once the court comes to the conclusion that DTA  Sale  is  a
\npart  of  the  licence,  which privilege the EOU earns by its exports, then it
\nfollows that it is part of licence which enables the EOU to effect DTA  sales.
\nBeing  a  licence or part of licence or one facet of licence granted under the
\nEXIM policy, which was notified in exercise of powers conferred under  Section
\n5 of the Foreign Trade ( Development and Regulation) Act, 1992, the suspension
\nof the license shall be effected, if at all only in terms of the provisions of
\nthe Act and the Rules framed thereunder and not otherwise.\n<\/p>\n
        29.   Before suspending the licence in terms of Proviso to Sub section
\n(4) of Section 9 it is mandate to give a notice to the holder of the  licence,
\na reasonable opportunity of being heard.  Proviso to Sub Section (4) mandatory
\nand  it  obligates  the  Director  General  or  Officer  authorised to grant a
\nreasonable opportunity of being heard  before  suspending  the  licence  which
\nlicence also  takes  in  or  include  the DTA Sales.  That apart, the Director
\nGeneral has to record reasons in writing before suspending the licence.   Such
\nsuspension  could  be  imposed  for  good  and  sufficient  reasons as it is a
\nrestriction o the licence and that part of DTA Sales already earned.\n<\/p>\n
        30.  In the present case, admittedly,  the  petitioner  has  not  been
\ngiven a  reasonable  opportunity  of  being  heard.    Section  9 (4) makes no
\ndifference between a suspension of a licence as a substantial order of penalty
\nor an interim suspension.  Under section 19 of the Foreign Trade  (Development
\nand Regulation)  Act,  1992  Rules  have  been  framed.    Rule 9 provides for
\nsuspension of a licence.  The licence could be suspended under Sub Rule (1) of
\nRule 9, if an order of detention has  been  made  under  The  Conservation  of
\nForeign  Exchange and Prevention of Smuggling Activities Act, 1974, or if such
\nan order of detention has been passed against a partner or a Managing Director
\nof Partnership firm or a Private Limited Company Being grantee of  a  licence,
\nsub  rule  (2)  of  Rule 9 provides that the Director General or an Authorised
\nOfficer may suspend  the  operation  of  any  licence  under  the  Rules  when
\nproceeding for cancellation of such licence has been initiated under Rule 10.\n<\/p>\n
        31.  In the present case Sub rule (1) has no application.  Sub Rule (2
\n) of Section 9 if at all could be a source of power to suspend.  But, sub rule
\n(2) of Rule 9 could be invoked provided proceedings for cancellation of such a
\nlicence is  initiated  or being initiated under Rule 10.  Rule 10 contemplates
\ncancellation if the license is obtained by  fraud,  suppression  of  facts  or
\nmisrepresentation  or  the  licensee  has  committed  a  breach  of any of the
\nconditions of the licence or the licensee has tampered with the licence in any
\nmanner or the licensee has contravened any law relating to customs or  foreign
\nexchange or the rules and regulations relating thereto.\n<\/p>\n
        32.   In  the present case, assuming for the purpose of arguments that
\nan order of cancellation could be passed for the alleged violation  which  was
\ndetected  by  the  Central  Excise Authority, but, till date no proceeding has
\nbeen initiated to cancel the licence granted under the Rules.  Therefore  Rule
\n10 cannot be relied upon.\n<\/p>\n
        33.   DTA Sales, though it comes under the third facet of the licence,
\nsuspension of DTA Sales  which  is  nothing  but  suspension  of  a  privilege
\nconferred  under the licence, such suspension should be in conformity with the
\nstatutory provision and DTA Sales cannot be suspended as a  matter  of  course
\nsince it  is  a privilege which the EOU has earned by its earlier exports.  In
\nother words, even suspension of one facet of the licence also attract the same
\nrule and such suspension shall also be only in terms of the said Rules.\n<\/p>\n
        34.  On a  conspectus  reading  and  consideration  of  the  statutory
\nprovision,  the  rules  and license conditions, the order of suspension of the
\nthird facet of the licence, namely DTA Sales , if at all could have been  made
\nunder  Sub  Section  (4)  of Section 9 and such suspension shall be made after
\ngiving a reasonable opportunity.  Concedingly, no such reasonable  opportunity
\nhas   been  afforded  to  the  petitioner  as  seen  from  the  very  impugned
\nproceedings.  Though it is pointed out that the import by  the  petitioner  is
\nnot  interfered,  So also the export, but DTA Sales alone has been interfered,
\nthis would mean the third facet of licence or privilege  conferred  under  the
\nlicence  granted  to the petitioner, a valuable right accrued in favour of the
\nthe petitioner, a 100% Export Oriented Unit, is suspended and such  suspension
\nnot  being  in  conformity  with  the  statutory  provisions,  is liable to be
\nquashed.\n<\/p>\n
        35.  In the result, the  writ  petition  is  allowed.    The  impugned
\nproceedings is  quashed.  However, liberty is given to the respondents to pass
\nfresh orders according to the provisions of  the  Act  and  the  Rules  framed
\nthereunder.\n<\/p>\n
        Consequently, connected  WPMP is closed.  The parties shall bear their
\nrespective costs.\n<\/p>\n
Index:Yes
\nInternet:Yes
\ngkv<\/p>\n
copy to:-\n<\/p>\n
1.  The Joint Development Commissioner,
\nMadras Export Processing Zone
\nTambaram, Chennai-45<\/p>\n
2.  The Assistant Commissioner of Central Excise
\nVirudhunagar<\/p>\n
3.  The Commissioner of Central Excise
\nMadurai<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Global Polybag Industries (P) Ltd vs The Joint Development … on 14 November, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14\/11\/2002 CORAM THE HON’BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION NO. 37545 of 2002 AND WPMP.No: 56354 of 2002 Global Polybag Industries (P) Ltd., 500A, Perali Road, Virudhunagar 625 002 ..Petitioner […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-52190","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nGlobal Polybag Industries (P) Ltd vs The Joint Development ... on 14 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/global-polybag-industries-p-ltd-vs-the-joint-development-on-14-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Global Polybag Industries (P) Ltd vs The Joint Development ... on 14 November, 2002 - 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