TMI Blog2005 (1) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... d brass scrap under OGL had sold the same to M/s. Himachal Arts on a high sea sale. The allegation against M/s. Himachal Arts, was contravention of Section 4-I(1)(a) of the Impex Act, 1947 and Clause 8 of the Imports (Control) Order, 1955. M/s. Himachal Arts were holding Duty Free Advance Licence and are stated to have failed to fulfil their export obligation and mis utilized the imported goods. By the adjudication order, petitioner were also held guilty of abetment in the misuse of import policy provision by M/s Himachal Arts and penalty of Rs. 10 lakhs was imposed upon petitioner. Petitioner was further debarred from importing goods receiving import licences and receiving imported goods from any canalising agencies for a period of one yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly photocopy of Bill of Entry also shows name of exporter M/s. Himachal Arts with name of M/s. Nirmal Exports having been scored off. Further import is shown against Licence No. PK/2958663/C/XX/84/2/82 dated 18-9-1982. These prima facie tend to support the petitioner's case that they had placed an order for import under OGL Scheme. But the same were sold on high sea sale to M/s. Himachal Arts and it was M/s, Himachal Arts which had cleared these goods. 5. The respondents in the adjudicating order or impugned order had proceeded on the basis that goods in question had been imported by the petitioner under Letter of Authority for the benefit of M/s. Himachal Arts. It is on this basis that the petitioner was found to have aided and abetted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of Letter of Authority through customs clearance. Petitioner could not be asked to prove the negative. Similar is the finding that since goods were imported under OGL and sold to M/s. Himachal Arts, petitioner was party to fraud and misutilization by the latter. 8. The Appellate Authority appears to have proceeded under misconception that under the import policy provisions prevalent then, the imports under OGL were subject to actual user condition. Mr. Mridul when confronted with this, very fairly states that this observation of the Appellate Authority was not correct. 9. In view of the foregoing discussion, writ petition is allowed and the impugned orders No. 12013/3/94-ADJ/AC, dated nil passed by Shri Ishwar Singh, Under Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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