TMI Blog2011 (2) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner only on account of violation of principles of natural justice. In such view of the matter, the petitioner on receipt of a copy of this order is permitted to file an appeal within the prescribed time limit. In favour of assessee. - Writ Petition No. 34796 of 2007 - - - Dated:- 15-2-2011 - R. Sudhakar, J. Shri B. Satish Sundar, for the Petitioner. S/Shri A.S. Vijayaraghavan, SCGSC and L.S.M. Hasan Fizal, Advocate, for the Respondent. [Order]. Writ Petition is filed praying to issue a Writ of Certiorari fed Mandamus to call for records in and connected with Na. Ka. 4049/07/Aa.2 dated 11-10-2007, issued by the third respondent, quash the same and further direct the second respondent to issue the copy of the order imposing penalty against the petitioner company, so as to enable them to prefer an appeal against the said ex parte order, and consequently hold that the said order on being served on the petitioner company shall be the date of service of the order. 2. Petitioner was granted Export Promotion Capital Goods Licence (in short EPCG Licence) on 13-8-1998. Based on the licence, petitioner is entitled to import capital goods on concessional rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Chief Secretary, Chennai on 8-3-2007 by ordinary post. Based on the Penalty Order and communication issued by the second respondent to the District Collector, the Tahsildar, the third respondent initiated recovery proceedings on 11-10-2007 for recovery of the penalty amount and called upon the petitioner to pay the amount within 15 days from the date of the proceedings. 5. Petitioner s counsel states that the recovery order issued by the third respondent Tahsildar, was served in person, challenging the recovery proceedings of the third respondent, the present writ petition has been filed stating that the order of the second respondent has not been communicated to the petitioner in the manner known to law. Therefore, the recovery proceeding of the third respondent is bad it is also pleaded that the copy of the order passed by the second respondent should be furnished to the petitioner so as to prefer an appeal against the said order in accordance with law. 6. Learned counsel for the petitioner submits that under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter called the Act ), Section 14 provides that opportunity should be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to do so vitiates the order imposing penalty as it is violation of principles of natural justice. The consequent proceedings are also bad. 8. Since the order of the second respondent, which resulted in passing of the impugned recovery proceedings by the third respondent Tahsildar, was not communicated, as per law, the petitioner had no knowledge of the proceedings of the second respondent and thereby his valuable rights has been affected. Non-service of the original order of adjudication, imposing penalty ex parte, is good enough reason to set aside the impugned proceedings of the third respondent Tahsildar, as the order adverse to the petitioner has been passed by the second respondent without proper service as contemplated by law. The order for recovery is causing great prejudice due to infraction of law as above. 9. Thiru A.S. Vijayaraghavan, learned Senior Central Government Standing Counsel appearing for the respondents 1 and 2 submitted that since the Foreign Trade (Development and Regulation) Act or the Rules does not provide any particular mode of service, the department has been following the practice of despatch by ordinary post and the records have been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice like, serve , give or send or any other expression to mean service by registered post. 13. Under the Foreign Trade (Development and Regulation) Act, 1992 Section 14 prescribes notice in writing to be given to the person concerned. The reading of Section 27 of the General clauses Act, 1897 and the Foreign Trade (Development and Regulation) Act, 1992, it is clear that the notice in the normal circumstances should have been sent by Registered Post in order to avoid the plea of non-service and consequent plea of violation of principles of natural justice. 14. It is now clarified by the learned counsel appearing for the respondents 1 and 2 that the Foreign Trade Development authorities are resorting to sending all communications as aforesaid only by Registered Post, in the petitioner s case there is a clear violation of principles of natural justice and the order imposing penalty has been passed without hearing the petitioner on merits. 15. Since the order of the third respondent is based on a communication by the second respondent whose order has not been served on the petitioner so far in the manner prescribed by law, it will be deemed to be non-service of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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