9911796707
TMI Blog2009 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 98. 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 1998 was a registered Merchant Exporter of slates, granites with chemical and allied products. By the Export and Import Policy (for short 'EXIM Policy') for the year 1992-1997, exporters were issued Exim Scrips against the export of any product during June 1991 and for subsequent period. The petitioner Company availed the service of one Murali Krishna for expediting the issue of Exim Scrips. It was stated by them that they never authorised the said Murali Krishna to deal with the office of Joint Director General of Foreign Trade either at Chennai or at Puducherry or to apply for obtaining any licence for availing Exim Scrips. According to the petitioner, the said person was informally handling the cases of the petitioner for expeditious issue of Exim Scrips. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 amended Act, the penalty for contravening the provisions of the Act was not exceeding Rs.1000/- or five times the value of the goods over which any contravention has been made. The limit of penalty has to be specified by the Central Government by a notification in the gazette in terms of Section 13 of the Act. It was also contended that the petitioner had not committed any offence and it was the action of the intermediary who was not authorised by them. 8. On notice from this court, a counter affidavit dated ''nil" (June 2008) was filed. In paragraph 4, it was averred as follows:- ''Para 4..... Further the petitioner has himself admitted that they had availed the services of one Shri.Murali Krishna for expediting the issue of Exim Scrip. Therefore, it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at Puducherry. On coming to know about the same, a showcause notice dated 22.9.1994 was issued under section 4(1) of the Import and Export Control Act, 1947 and after explanation, they were debarred from carrying out any import activity for the licensing period 1992-1993 to 1996-1997. It was also stated that the firm represented by him after obtaining Exim Scrips, refunded the premium by sale of Exim Scrips to the State Bank of India, Overseas Branch, Chennai. By an order dated 19.1.1996, a penalty of Rs.1 crore was imposed on the Managing Director of the firm. Their subsequent appeal to the appellate committee dated 19.1.1996 was allowed and the matter was sent back for fresh consideration by the adjudicating authority. After the remand, the adjudicating authority fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92) 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 1947) and in force immediately before the commencement of this Act shall, so far as they are not inconsistent with the provisions of this Act, continue to be on force and shall be deemed to have been made under this Act." 13. The learned Senior Counsel appearing for the petitioner stated by placing reliance upon Section 11(2) that the new Act has drastically reduced the penalty. Under Section 19 of the Act, the power to frame rules have been prescribed and what is saved by Section 20 was any right, privilege, obligation or liability acquired, accrued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Penal Code punishes 'attempt', but it does not define 'attempt'. All said, the question is really one of fact depending upon the peculiar features and circumstances of each case and the provisions of law, the attempted breach of which is complained of. In the context of the present case, we cannot lost sight of the definition of 'export' found in section 2(18) of the Act. The essential ingredient of export is the taking out of India. The acts complained of must fall in the course of movement of the goods with an intention to take them out of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The scheme and the context militate against the contention. The fact that the policy is statutory in nature (delegated legislation) has no relevance on the question at issue. It would be wrong to equate the filing of an application for advance licence with the filing of a suit where it is held that appeal being a substantive right, the right of appeal inhering in the party on the date of filing of the suit cannot be taken away by a subsequent change in law." Therefore, the learned Senior Counsel contended that the impugned orders must be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nor decisive of the question - see State of Punjab v. Mohar Singh AIR 1955 SC 84 and T.S. Baliah v. Income Tax Officer, Central Circle VI, Madras AIR 1969 SC 701. 20. Basing reliance upon the above extracted passage, the learned Additional Solicitor General submitted that it is not a case of the rights and liabilities under the repealed law have been put an end to by the new enactment and that the new Act kept alive the rights and liabilities under the repealed law. 21. There can be no quarrel over the proposition of law laid down in the Jayantil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
