TMI Blog2009 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of 1998, the petitioner is a Private Limited Company. In that writ petition, the challenge is to the order dated 27.1.1998 passed by the first respondent confirming the order of the second respondent dated 19.1.1996. The writ petition was admitted on 27.3.1998. An interim-stay for four weeks was granted on the condition that the petitioner furnishes bank guarantee to the extent of Rs.2 lakhs in favour of the second respondent within a period of two weeks. Thereafter on the petitioner furnishing a bank guarantee, the interim-stay was made absolute on 28.8.1998. 2. In W.P.No.13814 of 1999, the petitioner challenges the order dated 20.3.1998 passed by the second respondent as well as the Appellate Committee's order of the third respondent dated 29.12.1998. In this writ petition, notice of motion was ordered returnable by four weeks on 13.8.1999. On the application for interim stay, no orders were passed by this Court. It was merely directed to be posted along with main writ petition. Since both sides have agreed that these matters to be dealt with together, they were posted together and a common order is being passed. 3. It is stated that the petitioner in W.P.No.4398 of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were threatened with Revenue Recovery Proceedings for releasing the penalty amounts. It was against these two orders, the first writ petition was filed. 6. It was contended by the petitioner that the Exim Scrips were dated 03.7.1992 and they were issued after the Foreign Trade (Development Regulation) Act, 1992 (for short 'the Act') came into force i.e. with effect from 19.6.1992. Sections 11(2) and 13 of the Act reads as follows:- ''S.11(2)Where any person makes or abets or attempts to make any export or import in contravention of any provision of this Act or any rules or orders made thereunder or the export and import policy, he shall be liable to a penalty not exceeding one thousand rupees or five times the value of the goods in respect of which any contravention is made or attempted to be made, whichever is more." ''S.13. Any penalty may be imposed or any confiscation may be adjudged under this Act by the Director General or subject to such limits as may be specified, by such other officer as the Central Government may, by notification in the Official Gazette, authorise in this behalf". 7. In the light of the above provisions, it was contended that as per the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context as the liaison man was duly authorised and instructed to act on their behalf to liaise with the said office for expediting the issue of said licenses." 9. But, with reference to which Act (either old or new Act) will apply to the case, the following averments have been made in paragraph 5, which is as follows:- ''Para 5..... In accordance with the Section 11(4) of the Foreign Trade (Development and Regulation) Act, 1992 (Earlier Section 4(1)(3) of the Imports and Exports (Control) Act, 1947), the penalty imposed under this Act, may, if it is not paid, be recovered as an arrear of land revenue and the Importer and Exporter Code number of the person concerned, may have failure to pay the penalty by him, be suspended by the Adjudicating Authority till the penalty is paid. ..." 10. W.P.No.13814 of 1999 is filed by the former Managing Director of M/s.Trimex Industries Limited with the very similar allegation. In this case, it was stated that the very same Murali Krishna who was the intermediary fabricated certain documents and after forging the Director's signature obtained seven replenishment licences fraudulently for import of raw materials by showing a false address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demnity Bond in respect of Exim Scrip, obtained fraudulently. Addl. DGFT had imposed a penalty of Rs.1.00 Crore each on Shri.S.Ramadas (stated to be Managing Director of the M/s.Trimex Agencies) and on M/s.Trimex Agencies Pvt.Ltd. Chennai for violation of Section 4-I of the Imports Exports (Control) Act,1947 vide Order in Original No.3/34/93-94/ECA-II/1303, dated 19.1.1996". 12. Mr.R.Thiagarajan, learned Senior Counsel appearing for the petitioner submitted that in the Foreign Trade (Development and Regulation) Act, 1992 (Central Act 22 of 1992) sections 11 to 14 came into force w.e.f. 07.8.1992 whereas other provisions were brought into force w.e.f. 19.6.1992. It must be stated that before the Central Act 22 of 1992 was brought into force, the earlier law was occupying the field of Imports and Exports (Control) Act 1947. That was repealed by the Foreign Trade (Development and Regulation) Ordinance 1992 (Ordinance No.11 of 1992) (hereinafter will be referred to as 'the new Act') which was brought into effect from 19.6.1992. Section 4 of the Act reads as follows:- ''S.4. Continuance of existing Orders All orders made under the Import and Export (Control) Act, 1992 (3 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proceeded only under the new Act wherein special procedure has been granted and penalties have also been prescribed. 15. Reliance was placed upon the judgment of the Supreme Court in Bharat Barrel and Drum Manufacturing Company vs. The Collector of Customs reported in (1971) 3 SCC 170. This is for the proposition that if the departmental authorities impose fine on a licensee without proper investigation, whether goods imported did not comply with terms of licence, the Central Government in the exercise of revisional power should consider the case on merits and give an adequate opportunity to the licensee to prove his case. 16. The learned Senior Counsel also placed reliance upon the judgment of this Court in Ranjit Export Private Limited vs. Collector of Customs reported in 1985 (21) ELT 353 (Mad.). Since the petitioner was accused of making an attempt to import goods, the precise meaning of the term ''attempt" came to be dealt with in the said judgment of this Court as found in paragraph 24 and the same may be usefully extracted below:- ''Para 24. In the language of the Supreme Court, attempt defies a precise and exact definition. Section 511 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods out of India is made out on the facts and circumstances of the case, it will be far fetched to invoke the first limb of section 113(d) of the Act. That is the point on facts in the present case. The definition of ''Export" as found in Section 2(18) and the concept of 'attempt" as I could evolve with reference to the export, as defined in the Act, being what they are, I am of the view that the respondent is not in order to detain the goods on the ground that section 113(d) of the Act is attracted and the goods are liable to confiscation on that ground". 17. The learned Senior Counsel also further placed reliance upon the decision of the Supreme Court in S. B. International Ltd. vs. Assistant Director General of Foreign Trade reported in (1996) 2 SCC 439. This is for the purpose of proving that the norms obtaining on the date of licence alone would apply. For this purpose, the following passage found in paragraph 10 may be usefully extracted below:- ''Para 10. We are, therefore, of the opinion that the contention that a vested right accrues to an applicant for issuance of advance licence on the basis of the norm obtaining on the date of application is unacceptable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in are not inconsistent with the provisions in Section 6 of the General Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the Rules were deemed as an act of Parliament. Hence on the repeal of the Rules and the Gold (Control) Ordinance, 1968 the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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