TMI Blog2006 (4) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... for a CIF value of Rs. 13,20,637, on the condition that the licensee would effect exports to the extent of four times the CIF value, viz., US $44,747 towards additional export obligation within a period of five years, in addition to the maintenance of average export performance. The relevant period, therefore, is January 15, 1993, to January 14, 1998. 4. Mr. Bhasin, learned counsel for the respondent, states that this obligation had not been fulfilled by the end of the said period. It is, however, contended by Mr. Tripathi, learned senior counsel for the petitioner that it had been asserted before the respondent authorities that the obligation was in fact fulfilled. This controversy need not be decided in the present proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce mentions, inter alia , that it is prima facie established that M/s. Hastings Mill and their directors have violated the conditions of licence mentioned above and thereby made themselves liable to penal action under section 11 of the said Act. The reasons for arriving at the conclusion that the petitioner as a director, has personally become liable for such action has not been adumberated. 7. In the order in original dated 8-4-2004, after noting that several communications had been addressed to the company and the directors, it has been held as follows : "I have gone through the facts and records of the case carefully. I find that M/s. Advance License for duty free import of items as mentioned in the licence for a CIF value of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tings Mill (Jute Division of Shree Digvijay Cement Co. Ltd.), G.T. Road, Rishra, District Hooghly (WB), and their directors. I also order that in addition to the above penalty, they should also pay to the customs authority the full amount of customs duty along with penal interest as provided in the exim policy read with the Customs Act. 10. This action is without prejudice to any other actions that may be taken against the noticee firm under the Foreign Trade (Development and Regulation) Act 1992, and the rules and order made thereunder or any other act or law in force. 11. A perusal of the above will disclose that the authority had not specifically considered the role that was to be played by the petitioner in the export performanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other place the company stated to have been given on lease. Though the appellant is making confusing statements but it is clear that the company has not submitted any document in support of fulfilment of their export obligation and hence they have not made any exports. 6. Since Shri Bangur was a director in the company on the date of issue of the licence and remained in position till expiry of the export obligation period (even though the company was given on lease to MREL), he is equally responsible for completing the obligations undertaken against the licence. The company and other directors have also not filed any appeal. The import of capital goods imported duty free involved a huge Government revenue, hence this becomes the responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Commissioner of Police v. Gordhandas Bhanji , AIR 1952 SC 16 (at page 18) : Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, or contravention of the provisions of the Act and the rules made thereunder. So far as individual liability of a director to the payment of excise duty and penalty is concerned, no liability can be fastened on him unless the department is able to show as to how and to what extent a particular director is liable". The respondents have not taken the trouble to consider and comply with these legal mandates and prerequisites. 17. In the counter affidavit reliance has been placed by the respondents on section 5 of the Companies Act, 1956, which defines the phrase "officer who is in default". The reliance is wholly misplaced. The section clarifies that for the purpose of any provision in that Act, the officer who is in default would inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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