TMI Blog2016 (8) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... ame time, provided for sufficient guidelines and safeguards so that such discretion does not convert into arbitrary or discretionary exercise of powers – petition disposed off – decided against petitioner. - Special Civil Application No. 12597 of 2016 - - - Dated:- 12-8-2016 - Akil Kureshi And A. J. Shastri, JJ. For the Petitioner : Mr Paresh M Dave, Advocate ORDER ( Per : Honourable Mr. Justice Akil Kureshi ) 1. The petitioners have challenged an order in appeal dated 05.06.2016 passed by the Government of India, by which, the petitioners' appeal against the order in original came to be dismissed. In the result, the penalty of ₹ 2.97 crores (rounded off) on the company and personal penalties on the Directors came to be confirmed. This order the petitioners have challenged on various grounds including on the ground that imposition of penalty of ₹ 2.97 crores imposed under section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter to be referred to as 'the said Act' for short) for customs duty involved being merely ₹ 1.91 lacs. The petitioners also contend that in the show cause notice, there is not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legislative policy and its formulation as a rule of conduct. It cannot abdicate its function in favour of another. iii) In case of Om Kumar Ors. v. Union of India reported in AIR 2000 (SC) 3689, in which the Supreme Court discussed the principles of proportionality and the Wednesbury principle. 4. It can thus, be seen that the principle that the legislature cannot abdicate its essential legislative function into the executive is all too well accepted principle. At the same time, looking to the wide range and complex nature of activities that a welfare State engages itself into, there is a degree of tolerance to vesting of discretionary powers in the executive within the range or boundaries laid down in the legislation. 5. In case of Union of India and others v. M/s. Bhanamal Gulzarimal Ltd., and others reported in AIR 1960 (SC) 475, Constitutional Bench of the Supreme Court upheld the validity of Iron and Steel (Control of Production) and distribution order, 1941 holding that there was no excessive delegation, it was observed as under: 7. It is obvious that by prescribing the maximum prices for the different categories of iron and steel cl. 11B directly carries o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution. 6. In case of Vasanlal Maganbhai Sanjanwala and Anr. v. The State of Bombay, reported in AIR 1961 (SC) 4, a constitutional Bench of the Supreme Court observed that it is well settled that the power of delegation is a constitutional element of the legislative power. However, in the modern times when the legislature enacts law to meet the challenge of the complex socioeconomic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegate the choice for carrying out the policy laid down by their Acts. The Court while recognizing the approach of fair and generous and liberal consideration of a statute whether the legislature exceeded such limits, cautioned that such liberal construction should not be carried out by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power on executive authorities. 7. While we are examining the virus of an Act enacted by the parliament, we must recognize that the same can be struck down only on the ground of legislative incompetence or the law being violative of any of the fundamental rights or the other provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order publishing in the official gazette to make provisions for the development and regulation in the foreign trade by facilitating imports and increasing exports. Section 5 empowers the Central Government to formulate and announce by notification in the official gazette the foreign trade policy and amend the same as may be required. 10. Under subsection (1) of section 6 of the Act, the Central Government may appoint a person as Director General of the Foreign Trade for the purposes of the Act. As per section 7, no person could make any import or export except under an importexport code number granted by the Director General or the officer authorized by the Director General in this behalf in accordance with the procedure specified by the Director General. Section 8 provides for suspension and cancellation of import export code number in case of certain breaches. Section 9 pertains to issuance of suspension and cancellation of licenses. Chapter IIIA includes provisions for quantitative restrictions. Chapter IV pertains to search, seizure, penalty and confiscation. Section 10 thereof empowers the Central Government to authorize a person to carry out search and seizure. Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt except under import export code number granted by the Director General. In view of the complex requirements of foreign trade and import export policy, the executive would have to have sufficient powers to control contraventions of essential conditions of import export restrictions. It is, in this respect, subsection (1) of section 11 provides that no import or export shall be made by any person except in accordance with the provisions of the Act, the Rules and the orders made thereunder and the foreign trade policy for the time being in force. No restriction would be effective unless contravention thereof can be visited by penal consequences. It is in this respect, subsection (2) of section 11 provides that where any person makes or abates or attempts to make any export of import in contravention of any provision of the Act or the Rules or orders or the foreign trade policy, he would be liable to penalty. By very nature of things, such penalty has to be discretionary with a sufficiently wide range. Subsection (2) therefore, provides that such penalty shall not be less than ₹ 10,000/and shall not be more than 5 times the value of goods or services or technology in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
