7
.* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9000/2007
Date of decision: 21st May, 2009
GOVINDLAL ALOK KUMAR TRADING PVT LTD ..... Petitioner
Through Mr. Ajay Majithia & Mr. Rajesh
Kumar, Advocates.
versus
U.O.I & ORS ..... Respondents
Through Ms. Shilpa Singh & Mr. Vaibhav
Tandon, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
% Admit.
1. With the consent of the parties, the matter is taken up for final hearing.
2. The petitioner M/s Govindlal Alokkumar Trading Pvt. Ltd. have filed an appeal before the Appellate Tribunal for Foreign Exchange challenging penalty of Rs.5,00,000/- imposed under Foreign Exchange Regulation Act, 1973 for failure to make subject import after making remittance and utilizing foreign exchange equivalent to Rs.21,90,299/-. The petitioner had W.P. (C) No. 9000/2007 Page 1 filed an application for dispensation of the pre-deposit of the penalty amount. The application for waiver of pre-deposit was disposed of vide order dated 16th September, 2004 by the Appellate Tribunal for Foreign Exchange directing the petitioner to deposit 75% penalty amount as a pre- condition to entertain the appeal. The said order was challenged before this Court in Writ Petition (C) No. 17284/2004. The order dated 16th September, 2004 was set-aside and the matter was remanded back to the Appellate Tribunal for fresh adjudication by passing a speaking order after giving reasons.
3. By order dated 22nd October, 2007, the Appellate Tribunal has again re-iterated the earlier order and directed the petitioner to deposit 75% of the penalty amount as a pre-condition to entertain their appeal.
4. Learned counsel for the petitioner has drawn my attention to the adjudicating order dated 1st April, 2004 and submits that the said order solely relies upon a letter written by Bank of Baroda, whereby the Enforcement Directorate was informed that the petitioner had not furnished the Exchange Control Copy of Bill of Entry(s). He has drawn my attention to Exhibit N at Page 60 of the paper book, which is a copy of the bill of entry for home consumption. He submits that the subject goods were duly imported as is clear from the said bill of entry for home consumption. He also relies upon Exhibit C at Page 45, which refers to the import is made by the petitioner. Learned counsel for the respondent W.P. (C) No. 9000/2007 Page 2 Enforcement Directorate submits that an ex-parte adjudication order was passed as the petitioner did not respond to the notices and the petitioner was served by affixation.
5. Learned Tribunal in the impugned order has referred to contention of the petitioner that the goods were duly imported and the seller has confirmed about the sale and the petitioner cannot be held guilty because he did not furnish copy of the Bill of entry for home consumption. It is submitted that Exchange Control copy of the bill of exchange is a piece of evidence. As stated above, the petitioner has filed before this Court photocopy of the bill of entry for home consumption, Ex-N at Page 60. The respondents have not been able to verify and confirm the said bill of entry and cannot admit or deny the said bill.
6. Learned counsel for the petitioner has also drawn my attention to the letter dated 17th December, 1997 and another undated letter Ex-E at page 51. He submits that the subject goods were sold to a third party at sea and the purchaser had furnished the requisite documents including the bill of entry for home consumption to the Bank of Baroda. He submits that initially they could not procure copy of the bill of entry for home consumption. He states that Bank of Baroda refused to give a copy of the same stating that it was not their policy.
7. In view of the aforesaid contentions, it is directed that the petitioner herein will file an undertaking before the Adjudicating Authority that they W.P. (C) No. 9000/2007 Page 3 shall not dispose of and sell their immovable assets without permission of the Adjudicating Authority. They shall also furnish security of Rs.5,00,000/- to the satisfaction of the Adjudicating Authority stating inter alia that in case the appeal filed by the petitioner is dismissed, the Adjudicating Authority will be entitled to enforce the security. The petitioner along with undertaking will furnish details of the bank account(s) and file copy of the statement of bank account(s).
8. The Writ Petition is allowed and the impugned order dated 22nd October, 2007 is modified to the extent indicating above. The aforesaid undertakings and security will be furnished within a period of six weeks from today.
9. The Writ Petition is disposed of.
10. The observations made in this order are prima facie and the Appellate Tribunal will decide the appeal without being influenced by any observation made in this order.
DASTI.
SANJIV KHANNA, J.
MAY 21, 2009 rs/kmd W.P. (C) No. 9000/2007 Page 4