TMI Blog2006 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to export obligation of exporting 3000 Pcs Acrylic Children T. Shirts, 35000 Pcs. Acrylic Gents T. Shirts weighing 20 M.T. for a FOB value of Rs. 11,92,500/- within the stipulated period. Second instalment of licence was issued bearing No. 3072471 dated 22-9-1984 for Rs. 5 lacs for import of 25 MT of Acrylic Fibre man-made with both value and quantity as limiting factor. The duty exemption benefit was allowed for import of 24 MT only subject to export obligation of 3000 Pcs. Acrylic Children T. Shirts and 35000 Pcs. Acrylic Gents T. Shirts weighing 20 MT for FOB value of Rs. 11,92,500/-. 2.The petitioner failed to submit documents towards discharge of export obligation in respect of second licence inspite of extension and after issuing show cause notice dated 25-5-1989, the petitioner was debarred from receiving the import Licenses/CCPs and allotment of imported goods from the STC/MMTC or any other canalizing agency as well as import under OGL for 5 licensing periods viz., April 89 - March 90 to April 93 - March 94 vide Adjudicating Order No. 5/2/AM'90/FCA/LDH/1039-1043, dated 21-9-1989 against which appeal of the petitioner was dismissed on 3-6-1994 by the Additional DGFT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tners viz. Sh. Deena Nath Aggarwal, Sh. Surinder Aggarwal, Smt. Indu Agarwal, and Smt. Sunita Aggarwal. The above penalty would be payable by the noticee company and its partners named above in addition to their liability for the payment of customs duty, interest thereon as per relevant provision of the Exim Policy/Procedure." 5.The petitioner preferred an appeal which has been dismissed. Relevant operative part of the order is as under :- "4.The appellant firm was given an opportunity of personal hearing and Shri Kewal Aggarwal, stated to be the Proprietor of the firm and Shri Manjit Sharma his Assistant appeared before me for personal hearing on 12-4-2005. Shri Kewal Aggarwal though claimed to have completed the export obligation, but have not produced the original export documents neither with the appeal nor during the personal hearing and is expressing his willingness to pay Customs Duty. However, he was reluctant on payment of interest and requested for waiver. On the one hand he is claiming that he has completed the export obligation and on the other hand he is willing to pay Customs Duty on the material imported duty free. Hence, it is presumed that the appellant firm ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1991. It was for the first time on 9-8-2000 that the respondent No. 2 issued show cause notice to the petitioner for levy of penalty under Section 4L of the Import and Exports (Control), Act, 1947 (for short 'the 1947 'Act') proposing levy of penalty for default in fulfilling the export obligation. Vide order dated 30-6-2003, penalty of Rs. 5 lacs was levied on the petitioner for violation of provisions of the 1947 Act. In appeal also, the petitioner failed. 9.The petitioner having committed the default way back in 1988-89 in not fulfilling his export obligation in toto, the authorities could initiate penalty proceedings against the petitioner only within a reasonable time. It is not in dispute that a show cause notice for levy of penalty was issued for the first time on 9-8-2000. Still the matter remained pending and the penalty was imposed, nearly 3 years after the show cause notice, on 30-6-2003. The judgments referred to above as cited by the petitioner do support the proposition that the exercise of power has to be within a reasonable time, where no time limit prescribed under the statute for exercise thereof. Respondents could not justify the period of delay in issuing sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case, the Commissioner set aside the order of the Collector on October 12, 1961 i.e., more than a year after the order, and it seems to us that this order was passed too late." 12.In Ibrahimpatnam Taluk Vyavasaya Collie Sangham, AIR 2003 SC 3592, while referring to Section 50-B(4) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, expression "at any time" for exercise of suo motu power was interpreted to mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in a recent decision in D. Saibaba v. Bar Council of India and another, (2003) 6 SCC 186, after referring and quoting passages from Justice G.P. Singh's Principles of Statutory Interpretation observed that "Reading word for word and assigning a literal meaning to Section 48-AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning and so read it- as would give life to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised." 11.In Principles of statutory Interpretation (8th Edn., 2001), the author has stated thus :- "It may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The rule, that plain words require no construction, starts with the premise that the words are plain, which is itself a conclusion reached after constructing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed." The au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before lower appellate authority is withdrawn may be by the State. Thus, the view taken by the High Court is not sustainable..." 14.In Parekh Shipping Corporation's case (supra), show cause notice issued for short landing more than 12 years after the relevant date was set aside. 15.In Wilco and Company's case (supra), Madras High Court had set aside notice for imposition of penalty issued after six years of cause of action. 16.In Kanhai Ram Thekedar's case (supra), the Hon'ble Supreme Court set aside the demand for payment of interest four years after the assessment order being not within the reasonable time. 17.Accordingly, we do not find any justification for levy of penalty after 14 years of the default. The contention of the counsel for the revenue to the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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