@JUDGMENTTAG-ORDER
1. On this Writ Petition under Article 226 of the Constitution of India, which sought a restraint against Respondent Nos. 2 and 3 from invoking and encashing bank guarantees/pay orders submitted by the Petitioner and also to withdraw a communication Annexure ''O'' dated 5th August, 2014, this Court, after hearing both sides, had passed an order on 1st September, 2014 not to encash the bank guarantees/pay orders, if not already encashed. That order was continued by the Division Bench by a further order dated 11th September, 2014. The Writ Petition was posted for admission and on 15th September, 2014, the Division Bench continued the ad interim order till 18th September, 2014. On 18th September, 2014, this Court passed the following order :
"(1) Mr. Shroff, learned Senior Counsel, appearing on behalf of the Petitioner has pointed out that in compliance of our earlier order the Revenue has been duly served. While this Petition was placed today for admission, Mr. Chatterjee, learned senior Counsel, appearing with Mr. Bharadwaj, stated that the Director General of Foreign Trade, Government of India, requested them to represent the said Directorate in this Writ Petition. Mr. Chatterjee, on instructions informs that on 19th September, 2014, the request of the Petitioners for extension in export obligation for a period of two years without payment of customs duty would be considered. He submits that within a period of two weeks from the date of the consideration, the outcome or decision of the Director General would be communicated to the Petitioners.
(2) In view thereof and since this Directorate is considering the request as made above, interest of justice would be served, if, this Petition is placed under the same caption. However, in order to balance the equity and not caused any prejudice to the Petitioners, we continue our ad-interim order which has been passed by this Court on 1st September, 2014 for a period of four weeks but without prejudice to the rights and contentions of respective parties. The liberty is reserved to the Petitioner to apply in the event of any emergent situation. Stand over to 27th October, 2014."
Thus, the ad interim order was continued for a further period of four weeks without prejudice to the rights and contentions of both sides so as to enable the Petitioner to obtain the outcome of the request made to the Director General of Foreign Trade, Government of India. Thereafter, the matter did not appear, but we have been informed by Mr. Shroff learned Senior Counsel appearing for the Petitioner that the Petitioner has been served with a communication granting a certificate, which is entitled as Export Obligation Discharge Certificate (''EODC'' for short). Now, the request is that the baric guarantees/pay orders, which though having expired in the meanwhile but renewed, should be discharged and cancelled and returned to the Petitioner.
2. Mr. Jetty appearing for the Respondents does not dispute that a certificate in the above nature has been received by the Petitioner, but the concerned officials are scrutinising it and since everything is without prejudice to the rights and contentions of the parties, the contesting Respondents be given an opportunity to adopt such legal proceedings as are permissible in law and until then, the bank guarantees/pay orders be allowed to be retained. After hearing both sides and since the controversy in the Writ Petition is now rendered completely academic and after the subsequent development, we do not see how we can accede to the request of Mr. Jetly. Once the Director General of Foreign Trade, in terms of the statements and directions of this Court has examined the issue and issued the certificate, then, nothing survives in the Writ Petition. If the contesting Respondents are still inclined to adopt such legal proceedings as are permissible in law, they are free to do so. However, they cannot retain the bank guarantees/pay orders, as is now sought. The bank guarantees/pay orders were retained because the Petitioner having failed to discharge the export obligation and no certificate having been obtained in that behalf, there was a default in complying with the requisite provisions of the Customs Act, 1962 and the Rules made thereunder. It is for that purpose and to secure the revenue that this without prejudice arrangement was made. If the Revenue has any powers in terms of the rules and regulations to initiate legal proceedings, they are free to do so. They are equally free to pass such orders as are permissible in law. However, we cannot allow the retention of the bank guarantees/pay orders, as sought by the Respondents. The bank guarantees/pay orders be returned, duly cancelled, within a period of four weeks from today on receipt of copy of this order, if not already returned, duly cancelled.
