TMI Blog1989 (7) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ember, 1986 a letter was issued by the Export Inspection Agency, Calcutta to M/s. Triveni Food Products. The said M/s. Triveni Food Products were the manufacturer of the said consignment which was found at Japan to be contaminated by the Japanese Quarantine Authority, Kobe, Japan. By the said letter the said Export Inspection Agency, Calcutta, withdrew approval granted to M/s. Triveni Food Products, Calcutta for processing of Marine Products for export under Rule 3B 2(a) of the Rules. Thereafter, by a letter dated 18th October, 1986, the said Export Inspection Agency, Calcutta revoked the order of withdrawal dated 2nd September, 1986. 4. It is to be noted that the petitioner No. l has no manufacturing unit of its own, but it purchased all the goods exported by it, from the said M/s. Triveni Food Products, who were the manufacturer, thereof. 5. On 7th November, 1986 the Deputy Chief Controller of Imports and Exports issued a show cause notice to M/s. I.T.C. Limited pointing out that the consignment of 7.5 M.Ts. of frozen shrimp exported by I.T.C. Limited to M/s. Hanwa Co. Limited, Japan and carried by the aforesaid ship was found to contain cholera germs on its arrival in Japan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for manufacture, had since been revoked and after the inspection of the manufacturing unit by an appropriate officer of the Union of India, the said manufacturer, that is the Triveni Food Products had been allowed to continue to process the said products. 7. The writ petitioner company also took the point that the provisions of Clause 7(l)(d) and (e) of the Export (Control) Order, 1977 should not and does not apply, to the facts of the case. 8. A further letter was also written by the writ petitioner dated 19-1-1987 making further submissions. 9. Some of the points taking therein may be summarised as follows :- (a) The consignment which was found to be infected was very small fraction of the entire consignment. (b) No opportunity was given to the Exporter for further tests or inspection. (c) The ship which carried the cargo to the Japanese port, is not the ship on which the exporter had loaded the consignment at the Calcutta port. That shows that there was transhipment of the cargo, in the course of the voyage, and it is quite possible, even likely that the product could have been infected with cholera germs during such transhipment. (d) the Export Inspection Agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y goods and direct without prejudice to any other action that may be taken in this behalf, that no licence shall be granted to him or no permission shall be granted to him for exporting any goods, for a specified period under this order - (d) if he has, on any occasion, tampered with an export licence or has exported goods without a licence or has been a party to any corrupt or fraudulent practice in his commercial dealings or in obtaining a licence, or in exporting any goods, or is found to have solicited any licence by effecting an inducement to the holder of the licence or otherwise; or (d) if his agent or employee has been a party to any corrupt or fraudulent practice in obtaining any licence or in exporting any goods on his behalf; or 13. Withdrawal of approval (to manufacture frozen shrimps) in the case of Tribeni Food Products was done by the Export Inspection Agency under Rule 3(b)(2)(a) and (b) of the Rules framed under Section 17 of the Export (Quality Control) Inspection Act of 1963. The said rule reads as hereunder :- (2)(a) The approval accorded may be withdrawn in respect of a processor for the following reasons, after giving a notice of minimum period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspection agency might have failed in their inspection to defect the contamination if any, then it is a case of human failure. If export inspection agency failed to detect the contamination in a part of the consignment, how could any one else be expected to be fool-proof. The exporter was not the manufacturer and it could rely on the quality control inspections and the inspections of the Export control agency. That apart, so far as the instant case is concerned it has been alleged by the petitioner company that there appears to be a transhipment of the cargo during the course of voyage. It is quite probable that while the cargo had been in the custody of the transporter and while the same was transhipped during the course of the voyage, some of the cases could easily be infected by coming into contact with some infection. Under the circumstances, it is difficult to say that the exporter alone must be responsible for the contamination, which conclusion is in my opinion unjustified in the facts and circumstances of the case. The exporter may be responsible until the time the goods are put on board the ship or during the period of his custody of the goods. Therefore, unless, it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision because at the date on which the petition was moved, the period prescribed by Sec. 33-A of the Act had not expired. We are unable to hold that because of revision application could have been moved for an order correcting the order of the Income-tax Officer under Sec. 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. The High Court observed that under Section 35 of Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not, the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or the Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a Statute invests a Public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take proper care to keep the consignment free from infection while the same was in its custody that cannot in my opinion establish a case of corrupt and fraudulent practice. Corrupt and fraudulent practice has to be intentional with the motive of economic gain and in order to be a practice it has to be repeated on more than one occasion. Neither in the show-cause notice nor in the order, there is any allegation or finding which can, in my opinion, establish a case of any corrupt and fraudulent practice. 26. Under the circumstances, the said show-cause notice dated 7th November, 1986 and the said order dated 11th September, 1987 are hereby quashed and set aside. The respondents are restrained from giving any effect to the said impugned show-cause notice dated 7th November,1986 being Annexure F to the petition and also from giving any effect to the said order dated 11th September, 1987 being Annexure I to the petition. 27. There will be no order as to costs. 28. The learned Counsel appearing on behalf of the respondents prays for stay of operation of this order for a period of 4 weeks. 29. Stay of operation of this order is granted limited to a period of 4 weeks from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
