2007 (12) TMI 299 - HC - FEMA

Non-compliance of import licence and for mis-utilizing the same - Notification No. 18/9/97/ECA-III dt. 20-1-1999 - It is also submitted that the petitioner was constrained to file an appeal for the reason that for realization of the penalty imposed on the importer namely M/s. Magosan Exports (P) Ltd. the properties of the writ petitioner was being attached and therefore it became necessary for the writ petitioner to file an appeal to get over the order levying penalty and the appellate authority having not bestowed any attention to this aspect the order is liable to be set aside - It is found that the petition is not one with bona fides particularly as if as submitted by Sri Krishnamoorthy learned counsel for the petitioner the petitioner has preferred any independent writ petition questioning the legality of the action attaching the property of the petitioner the only reason for which this writ petition is filed is for getting over the order of penalty which is not on the petitioner but on the company the present writ petition and the purpose of the petitioner is to avoid the order of penalty or to get over the order of penalty imposed on the company though it is not on the petitioner in his personal capacity - Decided against the assessee

Summary

Issues:
1. Abuse of writ jurisdiction in filing the petition.
2. Quashing of order imposing penalty for non-compliance of export obligation.
3. Applicability of Section 15 of the Foreign Trade Act for appeal.
4. Dismissal of appeal by the appellate authority.
5. Allegations of fraud and dishonesty against the petitioner.
6. Legality of attachment order and separate writ petition.
7. Misuse of the court process and imposition of costs.

Abuse of Writ Jurisdiction:
The judgment addresses the abuse of writ jurisdiction by individuals who advocate causes not necessarily their own. The petitioner sought to quash an order imposing a penalty for non-compliance with export obligations. The court noted the misuse of the writ jurisdiction for personal gain rather than legitimate concerns.

Quashing of Penalty Order:
The petitioner filed a writ petition seeking to annul an order passed by the appellate authority under the Foreign Trade Act. The penalty was imposed on a company for failing to fulfill export obligations within the stipulated time frame. The court examined the circumstances leading to the penalty imposition and the subsequent appeal dismissal.

Applicability of Section 15 of the Act:
The judgment delves into the provisions of Section 15 of the Foreign Trade Act, which governs the appeal process. The court highlighted the statutory requirements for filing an appeal, including the time limit and the deposit of penalty amount. Non-compliance with these requirements could render the appeal untenable.

Dismissal of Appeal:
The appellate authority dismissed the petitioner's appeal after finding no convincing explanation for the delay in filing. The court upheld the dismissal, emphasizing that the appeal could not be entertained due to non-compliance with statutory provisions and lack of bona fide intentions.

Allegations of Fraud:
The respondents alleged fraud and dishonesty on the part of the petitioner, who attempted to disown liabilities related to the penalty. The court noted discrepancies in the petitioner's conduct, including resigning from the importing company after benefiting from the imported machinery.

Legality of Attachment Order:
The judgment briefly mentions a separate writ petition challenging the legality of an attachment order against the petitioner's property. The court refrained from delving into the contentions of that petition but emphasized that the present writ petition aimed to circumvent the penalty imposed on the company, not the petitioner personally.

Misuse of Court Process:
Ultimately, the court deemed the writ petition a misuse of the legal process, with no genuine purpose apart from evading the penalty imposed on the company. The petitioner was directed to pay costs to the respondent within a specified timeframe, highlighting the court's disapproval of the petitioner's actions.

This detailed analysis of the judgment provides insights into the legal intricacies surrounding the issues raised in the case, including statutory compliance, abuse of court processes, and allegations of fraud.