TMI Blog2012 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of hearing - as before the suspension of Code the “consent” of the Board was not obtained - the said order is without jurisdiction and illegal and cannot be sustained – Writ Petition allowed - W.P. No. 578 of 2011 - - - Dated:- 7-3-2012 - Mr. Justice Soumitra Pal, J. For the Petitioners : Mr. Ranjan Deb, Senior. Advocate, Mr. Arijit Banerjee, Bar-at-law, Mr. Kumar Gupta Ms. K. Banerjee. For the Respondent No. : Mr. Pradip Kr. Tarafdar, Mr. Subir Pal. Soumitra Pal, J.:- In the writ petition the petitioner has challenged the order of suspension dated 7th December, 2010 passed under sub-section (4) of Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 (for short the Act ) by the Joint Director of Foreign Trade, the respondent no.3, suspending the Importer Exporter Code ( Code for short) of the petitioner. The facts which are relevant for the purpose of adjudication are that by an order dated 22nd November, 2006 the Deputy Director General of Foreign Trade, the respondent no. 4, after issuing show-cause notice to which the petitioner had replied and was not found to be satisfactory, and after giving an opportunity of persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Special Provisions) Act, 1985 ( SICA for short), suspension of Code without the consent of the Board was illegal. Mr. Pradip Tarafdar, learned advocate appearing on behalf of the respondents, opposing the writ petition, submitted that the intent and purpose of the legislation is that the person who has violated the provisions of Act should be penalised and thus punishment should be imposed. Referring to section 11(3) of the Act, submission was as the show-cause notice issuing authority is not the adjudicating authority, therefore adjudicating authority cannot mean a particular authority as contended on behalf of the petitioner. Submission was the respondent no.3 being a superior officer and empowered by the notification dated 20th January, 1999 issued under section 13 of the Act, had the jurisdiction to suspend the Code. Besides, while deciding the jurisdiction of the adjudicating authority and in order to achieve the object of the Act and to suppress mischief, Court should give a harmonious interpretation of sections 2(a) and 13. Moreover, as before imposition of penalty show-cause notice was issued, reply was received and as after the petitioner did not respond to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituation benefit which has been accrued in favour of the appellant is sought to be withdrawn. The same shall be done upon giving a hearing, namely, before passing suspension order. It may so happen that the party concerned may pay the entire amount or secure or can explain that it is not a case where order of suspension should be passed. While on one hand, the certificate proceeding has been initiated and on the other hand, suspension order has been passed without waiting for the result of certificate proceedings; poses somewhat hardship. 12. According to us, when the certificate proceeding has been initiated the respondents should wait for the result of the certificate proceeding. According to us, both the methods cannot be resorted to together, unless one method is exhausted, another method should not be resorted to. All these aforesaid points could have been agitated had a hearing been given. Although sub-section (4) does not admit of any pre-decisional hearing but one should not loose sight of the provision of Section 8 though contained in separate chapter where it has been specifically mentioned that before passing order of suspension cancelling importer-exporter code number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spending the Code, was the Adjudicating Authority . It is to be noted that the word the is a definite article and denotes a particular person or a particular body (Chambers Dictionary). Hence, the use of the word the before the term - Adjudicating Authority - in section 11(4) has a specifying or particularizing effect as opposed to the indefinite or generalising force of a or an ; (Law Lexicon). Hence, in the background of the discussion, under section 11 in subsection (4), order directing suspension of Code is to be passed by the Adjudicating Authority which had passed the order imposing penalty. Thus, as the respondent no.4 had adjudicated and had passed the order dated 22nd November, 2006 imposing penalty, it is the Adjudicating Authority under Section 11(4) of the Act. The argument on behalf of the respondents that the notification dated 20th January, 1999 confers jurisdiction on the respondent no.3 to suspend the Code cannot be accepted as it only lays down the powers of the officers as envisaged under section 13 in terms of pecuniary limit. This apart, section 13 speaks of imposition of penalty and adjudication regarding confiscation and does not speak of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment in M. S. Sambamurti Sastriar and others vs. The Deputy Registrar of Co-operative Societies, Ranipet, North Arcot Dist. and others: AIR 1971 Madras 343 also does not assist the respondents as therein Court was interpreting the word himself occurring in section 71 of the Madras Co-operative Societies Act, 1961. In neither of the judgments Apex Court and High Court had occasion to consider the use of the expressions a and the which the legislature had thought it fit to incorporate in the statute. Thus, not being the Adjudication Authority , as the respondent no.3 had no power and authority or jurisdiction to pass the impugned order dated 7th December, 2010 suspending the Code, the said order is without jurisdiction and illegal and cannot be sustained. In order to answer the third issue, it is necessary to refer to the relevant portion of section 22 (1) of SICA, which is as under:- Where in respect of an industrial company a sanctioned scheme is under implementation then notwithstanding anything contained no proceedings for the winding-up of the industrial company or for execution, distress or the like against any of the properties of the industrial company o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gots Alloys Ltd vs. M/s. Pennar Peterson Securities Ltd and others : AIR 2000 SC 954, relied on by the respondents, are not applicable to the facts of the case as the question therein, as evident from paragraph 18 of the said judgment, was whether section 22 of SICA creates any legal impediment for instituting and proceeding with the criminal case on the allegations of an offence under section 138 of the Negotiable Instruments Act, 1881 against a company or its directors. Therefore, the act of suspending the Code without obtaining the consent of the Board is illegal. Hence, as before passing the order of suspension of Code the petitioners were not given an opportunity of hearing, as the respondent no.3 who had passed the impugned order of suspension of the Code was not the adjudicating authority under section 11(4) and as before the suspension of Code the consent of the Board was not obtained, the impugned order dated 7th December, 2010 suspending the Code is without jurisdiction and illegal and is thus set aside and quashed. The writ petition is allowed. No order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be given to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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