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TMI Blog1989 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Regulation Act, 1947, (hereinafter called the '1947 Act') read with Central Government Notification No. 6(8)-EF 11/52, dated 22nd April, 1952. The said notices in both the cases are in identical terms and a copy thereof has been annexed as Annexure 'E' to each of the Writ petitions. They were issued by Shri M.G. Wagh, Director, Enforcement Directorate, Ministry of Finance, Department of Revenue & Insurance, Government of India. The petitioners have further impugned the decision taken by the said Director vide letter of 8th June, 1970 (copy Annexure 'F' to hold adjudication proceedings as contemplated under Section 23D of 1947 Act. This decision was taken after considering the reply of the petitioners to the above said show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Central Government Notification No. 6(8)-EF. II/52 dated the 22nd April, 1952. AND WHEREAS by failure to realise the full export value of the said shipments from the concerned foreign consignee within three months from the date of the said shipments, in the prescribed manner, the said M/s. Bansidhar Ramgopal and S/Shri Rajpal Aggarwal and Jawahar Lal Jawahar being their partners appear to have contravened the provisions of Section 12(2) of the Foreign Exchange Regulation Act, 1947, read with Central Government Notification No. 6(8)-EF -II/52 dated the 22nd April, 1952, and have thereby rendered themselves liable to be proceeded against under Section 23(l)(a) of the said Act. NOW THEREFORE the said M/s. Bansidhar Ramgopal and S/Shri Rajp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration : "We hereby undertake that we will effect the matching imports within three months from the date of the corresponding exports." It is averred that due to unsettled conditions at the relevant time because of a coup, the Afghanistan nationals to whom the goods had been exported who in turn had undertaken to export goods to India, had left that country and, therefore, the petitioners were unable to effect the matching imports. The petitioners have further averred that they were ready and willing to import goods from those countries with whom they had dealings and where Afghan businessman had settled but that was only possible if the Government granted them the Custom Clearance Permits from the General Currency Area. They further aver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid; Provided that no proceedings in respect of any contravention of this subsection shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner." 6. I may notice here that Section 12, quoted above, has been amended and now numbered as Section 18 in the Foreign Exchange Regulation Act, 1973 (herein called the '1973 Act'). Sub-section (2) of Section 18 of 1973 Act reads as follows: "(2) Where any export of goods, to which a notification under Cl. (i) of Sub-section (1) applies, has been made, no person shall, except with the permission of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of" could only be brought within the purview of sub-section (2). 8. Mr. D.P. Sharma, learned counsel for the petitioners, in support of his submission that the impugned notices dated 10th October, 1969, being contrary to the provisions of sub-section (2) of Section 12, are invalid, relies on a Full Bench decision of the Calcutta High Court in The Jay Engineering Works Ltd. v. M.G. Wagh & others, AIR 1973 Calcutta 413. In that case also the notice of initiation of adjudication proceedings under Section 23-D had been issued by the Director of Enforcement on the ground that the exporter had failed to realise the export value of the goods from the country where those goods were exported within six months from the date of shipment which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise its jurisdiction under Article 226 of the Constitution as the petitioners have not exhausted their remedy by way of filing an appeal. The objection taken is misconceived as in the present case the issuance of the impugned orders was without jurisdiction. In a case like the present there is no bar to the exercise of jurisdiction under Article 226 of the Constitution. In fact the very first ground which has been enumerated in a Division Bench decision of this Court in I.T.C. Limited and another v.. Union of India and Others, 1983 E.L.T. 1 (Del.) is that the jurisdiction under Article 226 of the Constitution can be exercised when the impugned order is without jurisdiction. 12. The result is that the writ petitions are allowed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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