TMI Blog2003 (2) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... any other agency nominated by the Ministry of Commerce, at a price indicated in the certificate issued by the SBI/agency after purchase of gold/silver. The scheme shall be limited to exports which are supported by irrevocable letter of credit, payment of cash on delivery basis of advance payment in foreign exchange. Export of gold jewellery may also be allowed on collection basis (documents against acceptance). The exporter has the option to obtain gold/silver from SBI in advance. On presentation of required documents, appropriate Release Order and Gem Replenishment Licence may be issued by the licensing authority. The value addition will be calculated with reference to the value of gold content (including wastages) and silver content (without wastages) at the price at which the gold and silver is booked by SBI. The minimum value addition for gold and silver jewellery/articles shall be 15 per cent and 25 per cent respectively." 2. In terms of the aforesaid scheme, after getting the gold from the MMTC, the petitioner was required to export the gold jewellery made from the said supply of gold, within a period of 120 days, i.e., from 1st July, 1994 to 27th October, 1994. For f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort obligation to enable it to find out another buyer. Pending this extension it also located a buyer and finalised the terms and conditions with him on the condition that supplies would be received by it well in advance before Christmas i.e., before 25th December, 1994. However, extension was received by it from respondent No. 2 only on 16th January, 1995 by which time Christmas was already over and therefore, this new buyer also backed out and refused to purchase the jewellery. The petitioner, in these circumstances, made further request for extensions on 23rd January, 12th and 13th February, 1995. However, in the meantime, the MMTC invoked both the bank guarantees in November, 1994 thus cost of full amount of gold as well as national and international price difference. 4. On 16th August, 1995 the respondent No. 4 issued a show-cause notice to the petitioner alleging that it had failed to discharge its export obligation and therefore why penalty be not imposed under section 11(2) of the Act for violation of clause 88C of Export Promotion. The petitioner sent reply dated 25th August, 1995. Thereafter respondent No. 4 fixed personal hearing on 18th April, 1996 but the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etail, I proceed to deal with the matter on merits as well. 6. The petitioner has primarily raised three grounds to challenge the impugned orders : ( i )The petitioner firm has not been granted opportunity of hearing to present its case which amounts to violation of principles of natural justice. ( ii )The respondents are not entitled to impose penalty under section 11(2) of the Act for violation of the EXIM Policy after invoking the Bank guarantees. ( iii )That order in appeal is vitiated since the same has not been considered/passed by all the four members, constituting the Appellate Committee. 7. In so far as first argument is concerned, I do not see any substance therein. As far as proceedings before the adjudicating authority are concerned, show-cause notice dated 25th August, 1995 was served upon the petitioner to which it submitted its reply also. Thereafter, it was granted personal hearing on 27th December, 1995. As per the averments made in the counter affidavit, case was fixed for hearing on 9th February and 18th April, 1996. On these two dates also the petitioner failed to appear and in these circumstances the adjudicating authority was forced to proceed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 13 of the said Act and specified in column 2 of the said Table. TABLE S. No.Designation of Adjudicating 1.Controller of Imports Exports 2.Assistant Director General of Foreign TradeAdditional Director General of Foreign Trade 3.Deputy Director General of Foreign Trade 4.Joint Director General of Foreign Trade 5.Addl. Director General ofAdditional Secretary in the Foreign TradeMinistry of Commerce aided by two Joint Secretaries and a Director of that Ministry." 11. As per the aforesaid Notification in those cases where the adjudicating authority is the Additional Director General of Foreign Trade (which is the case herein), the Appellate Authority would be : "Additional Secretary in the Ministry of Commerce aided by two Joint Secretaries and a Director of that Ministry". It was submitted by learned counsel for the respondents that the Appellate Authority is the Additional Secretary in the Ministry of Commerce. This Authority is simply aided by the two Joint Secretaries and a Director of that Ministry. Therefore, according to the learned counsel, the Appellate Authority consists of the Additional Secretary in the Ministry of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Commission which shall consist of a Chairman and not less than two and not more than eight other members, to be appointed by the Central Government." 15. Section 129 of the Customs Act, 1962 provides for the Constitution of the Appellate Tribunal which is the following words: " Appellate Tribunal - (1) The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical numbers as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act." 16. By using the words shall consist of , the intention of the Legislature is evident regarding composition of the various Tribunals in the aforestated provisions. This further strengthens the contentions of the respondents that the intention and purport of Notification in this case is clearly evident from the use of the words aided by instead of shall consist of and hence there is no mandatory requirement for consideration of the appeal by the other three members who were only to aid/support the Additional Secretary/Additional Director General, Foreign Trade. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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