TMI Blog2006 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... but in view of Section 20(2) of the Foreign Trade (Development Regulation) Act, 1992 (hereinafter referred to as the Act of 1992 ) such repeal is having no effect on institution of proceedings for imposing penalty. 3. The office of the Chief Controller of Imports and Exports, Government of India granted a CG Licence dated 20-10-1980 for Rs. 28,68,122/- to the petitioner with a condition to earn foreign exchange by exporting annually not less than 25% of the total production viz. marble slabs/blocks and other cladding material for a period of five years from the 18 months after commissioning of the plant and equipment and commencement of production. 4. The petitioner, a company incorporated under Companies Act, started production w.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a licence otherwise then in accordance with the conditions of such licence or letter of authority. The petitioner never used or utilised such goods or materials otherwise then in accordance with the conditions of licence dated 20-10-1980, as such initiation of proceedings under impugned notice for taking action under Section 4-I of the Act of 1947, according to the petitioner, lacks competence. 7. A reply to the writ petition has been filed on behalf of the respondents stating therein that the petitioner company was issued with notice dated 26-2-1993 as the petitioner failed to fulfil its export obligation for the plant, machinery and equipment imported under the import licence. The relevant portion of the reply to provide cradle to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 1947 could not be resorted for non-fulfilment of export obligation. 9. Heard Counsel for the parties. 10. In precise, the controversy involved in the instant petition for writ is that whether any action can be taken under Section 4-I(1)(a) of the Act of 1947 against a person having licence or letter of authority in relation to any goods or materials which have been imported and who has failed to discharge export obligations or failed to adhere conditions which are not relating to use and utility of the goods or materials imported. Section 4-1(1)(a) of the Act of 1947 reads as under :- Sec. 4-I. Liability to penalty. - (1) Any person who.-(a) in relation to any goods or materials which have been imported under any licence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the licence pertains to export conditions attached to the import licence dated 20-10-1980. According to the respondents the petitioner violated export conditions, specifically the condition No. 4 and that warranted initiation of proceedings under Section 4-I(1)(a) of the Act of 1947. The condition No. 4 of schedule-II provides for earning foreign exchange by exporting annually not less than 25% production for a period of five years from the 18th months after commissioning the plant and equipment and commencement of production. A reading of Section 4-I(1) (a) of the Act of 1947 establishes it well that the proceedings to impose penalty can be instituted and penalty can be imposed, upon a licencee :- (i) in relation to any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, initiation of proceedings for violation of it, under Section 4-I of the Act of 1947, is incompetent. The respondents lacks jurisdiction to proceed against the petitioner against Section 4-I of the Act of 1947 for violation of export obligation as penalty under Section 4-I of the said Act can be imposed only if a licence holder uses or utilise goods and materials imported under a licence otherwise then in accordance with the conditions of licence. 14. In the present case the respondents failed to make out any case against the petitioner to the effect that the goods and materials imported under the licence dated 20-10-1980 were used and utilised otherwise then in accordance with the conditions of licence, therefore, the impugned noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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