TMI Blog2014 (10) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... m an accredited agency, Balaji’s assumption that M/s. Moody International, Iran was an accredited agency appears to the bona fide. In the given facts and circumstances, no ulterior motive or mal-intent can be ascribed to Balaji in accepting the certificate of M/s. Moody International. It is also relevant to note that the value of HMS was only ₹ 33,600/- which was not significant in comparison to the total value of the goods imported. This fact has been completely ignored by the respondents while imposing penalty on Balaji. - No penalty on Balaji - Decided in favor of petitioner. - W.P. (C) No. 1788 of 2011 - - - Dated:- 14-10-2014 - Vibhu Bakhru, J. Shri Piyush Kumar with Ms. Shikha Sapra, for the Petitioner. Shri Amit Mahajan with Nitya Sharma, for the Respondent. JUDGMENT The petitioner has filed the present petition impugning orders dated 9-2-2011 and 7-9-2006 passed by respondent nos. 1 and 2 respectively (hereafter referred to as impugned orders ). The petitioner is aggrieved by the impugned order dated 7-9-2006 whereby a penalty for a sum of ₹ 2,50,000 was imposed upon M/s. Balaji Impex (proprietary concern of petitioner s late husband). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaji remained pending. 2.5 While the appeal preferred by Balaji was pending, the petitioner s late husband (proprietor of Balaji) met with an accident and, subsequently, expired on 18-1-2008. 2.6 During the pendency of the appeal, respondent no. 2 initiated proceedings for recovery of penalty from Balaji. Aggrieved by the same, the petitioner filed a Writ Petition before the Allahabad High Court and by an order dated 7-4-2010 the Court stayed the recovery proceeding pending disposal of the appeal preferred by Balaji against the impugned order dated 7-9-2006. By the impugned order dated 9-2-2011, the appeal preferred against the impugned order dated 7-9-2006 was rejected. 3. It was contended by the petitioner that the orders passed by the respondents are unreasonable, arbitrary and liable to be dismissed in limine as the respondents failed to address the contentions raised by the petitioner. It was further contended that the respondents have failed to acknowledge that the consignment was accompanied by no war material and that the goods/consignment was cleared by M/s. Moody International, Iran. It was, thus, contended that the respondents have erred in holding that M/s. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contended that Balaji/petitioner could not seek parity with the orders passed in the case of SGS, as the consignment in question was procured by SGS from Balaji. 10. Balaji had sold the goods in question on high seas basis. Thus, admittedly, the offending goods (HMS) were not imported by Balaji. The term import is defined under clause (e) of Section 2 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as FTDR Act ) as under :- (e) import and export means, - (I) in relation to goods, bringing into, or taking out of, India any goods by land, sea or air; (II) in relation to services or technology, - (i) supplying, services or technology - (A) from the territory of another country into the territory of India; (B) in the territory of another country to an Indian service consumer; (C) by a service supplier of another country, through commercial presence in India; (D) by a service supplier of another country, through presence of their natural persons in India; (ii) supplying, services or technology- (A) from India into the territory of any other country; (B) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with objectionable war materials and sold to the final Indian importer M/s. S.G. Steels on High sea sale basis without any valid Pre-Shipment Inspection Certificate, in contravention to the provisions of FTDR Act, 1992. 13. The impugned order dated 9-2-2011 also proceeded on the basis that Balaji was the importer of the said goods. This is also clear from paragraph 8 of the impugned order dated 9-2-2011 which reads as under :- I have gone through the facts of the case available on record and the submissions made by the appellants. In this case M/s. Balaji Impex imported restricted items (war material) in contravention of the Foreign Trade Policy. M/s. Moody International, Iran is not an authorized agency to issue an Inspection Certificate for a consignment meant for India. Hence, I found no reason to interfere with the Adjudication Order passed by the Jt. DGFT, DGFT (HQ). 14. The learned Counsel appearing for the respondent supported the impugned orders by contending that the penalty had been imposed on Balaji on the basis that it had abetted import of goods in contravention of the provisions of the FTDR Act. 15. In my view, this contention is liable to be rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
