TMI Blog2022 (7) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... , to the effect that such a person was responsible for the acts committed by or on behalf of the company. From the impugned orders, it is clear that the entire charge undisputedly, is levelled against TPI for not fulfilling the advance licence obligations. No notice was admittedly issued to petitioner in petitioner's name. That being the case, there was a clear violation of the principles of natural justice. In point of facts, prejudice has been actually caused to Mr. Bhatt. This is so because the show-cause-notice was not issued in the name of Mr. Bhatt or even to his correct address. Even show-cause-notice issued to TPI did not contain specific allegation against Mr. Bhatt to which he could reply. No opportunity as such was given to Mr. Bhatt to represent against the proposed imposition of penalty. Obviously, Mr. Bhatt was not heard before the impugned orders were passed whereby penalty has been imposed upon him. The proceedings against Mr. Bhat were void ab initio. If only a notice had been sent to Mr. Bhatt identifying the specific acts attributable to him, Mr. Bhatt could have represented against the imposition of any penalty. He could have placed on record various fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to day management and business of TPI has also not been denied. 5. It appears that TPI had been issued Advance Import licences under which TPI was permitted to import certain raw material with respect to which TPI was required to pay import duty. The advance licence facility was granted to TPI on TPI undertaking to export finished products of a certain value within a certain period from the date of import (hereinafter referred to as export obligation ). It appears TPI had defaulted in its export obligation under the advance licences issued to it by respondent No. 2 by not submitting the required documentation as alleged by respondent No. 2. As a result, respondent No. 2 passed the impugned adjudication orders holding TPI as defaulter under Foreign Trade (Development and Regulation) Act, 1992 ( FTDRA for short). 6. It seems TPI was receiving notices from respondent No. 2 and those notices were also forwarded by respondent No. 2 to the incorrect residential address on the premise that Mr. Bhatt also continued to be a director of TPI. It appears that no notice was addressed to Mr. Bhatt but all notices were addressed to TPI and TPI was called upon to show cause. 7. In the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to the demand notice, it was TPI that was issued a refusal order dated 26.02.2001 followed by a forfeiture order dated 19.06.2003; (h) It was TPI that had received a show-cause-notice dated17.06.2008 requiring to show cause as to why action to impose fiscal penalty should not be taken against TPI and its directors; (i) It was TPI that was directed to reply to the show-cause notice and it was TPI that was warned that failure to do would lead to a presumption that it had nothing to say in its defence and the case will be decided ex-parte on merits without further reference to TPI; (j) It was TPI that was offered an opportunity of personal hearing on 23.07.2008. 11. Even on the conclusions arrived at in the impugned orders, respondent No. 2 holds that since TPI did not submit the MODVAT reversal certificate, it can be concluded that no export has been made by TPI and TPI was under obligation to complete the export obligation and since there was lapse on the part of TPI (and its directors) penal action has been passed against them. But nowhere it is stated what was the lapse on the part of which director. 12. Here TPI is the accused person primarily. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Bhatt could not be sustained. It would be useful to quote paragraphs 7 to 9 of a judgment of Gujarat High Court, where facts were almost similar. In the case of Om Vir Singh Vs. Union of India 2016 (340) E.L.T. 277 (Guj.) they are as under:- 7. The perusal of show-cause notice which is the starting point of the proposed action, this Court would notice that the show-cause notice reads as under: 6. And whereas the above action of the noticee firm contravene the provision of para 4.20 of Chapter 4 the Export and Imports Policy Book 1997-2002 and Sec. 11(1), (2) and (3) of the Foreign Trade (D R) Act, 1992. Now therefore, in exercise of the powers vested in me under Sec. 8(1)(a)(b) of the Foreign Trade (D R) Act, 1992, I call upon the noticee firm to show-cause within a period of 30 days from the date of receipt of this notice as to why action should not be taken under Section 11(4) to cancel/suspend the importer/exporter Code No. 3794000013, if you want to be heard in person to explain the case, appear before the undersigned on 21-10-2003 at 3-00 p.m. 8. The show-cause notice therefore does not appear to have been addressed to the petitioners who are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner to which he could reply. No opportunity as such was given to the petitioner to represent against the proposed imposition of penalty. Obviously, the petitioner was not heard before the order-in-original was passed whereby the aforesaid penalty was imposed upon him. The mere fact that he filed an appeal and was heard in the appeal would not alter the situation. The proceedings against him were void ab initio. Had the petitioner been issued a notice in terms of Section 4L of the said Act, he could have represented against the imposition of such penalty. He could have placed on record various facts and circumstances to show that no offence was committed by the company and that even if such offence was committed by the company, he had no hand in it. All these circumstances, if he were able to establish them, would have absolved him of the liability of penalty which he now bears like a garroter round his neck. So even if the question of prejudice were to be taken up, it would be clear that the order-in-original as well as the Appellate Order imposing a penalty on the petitioner could not be sustained. 9. In view of the aforementioned this Court come to the conclusion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
