Delhi High Court
Tarun Offset Printers vs Union Of India (Uoi) on 16 October, 2006
Author: A Kumar
Bench: A Kumar
ORDER
Anil Kumar, J.
1. The petitioner has prayed for quashing of order-in-appeal No. 11/86/1999-2000/ECA-l, dated 15-6-2004 passed by respondent No. 2 for non compliance of condition of dispensation of pre-deposit of penalty amount.
2. The petitioner is stated to be a partnership firm engaged in the business of offset printing of books and other study material. During the period from 28-10-1992 to 16-11-1992 petitioner received some orders from UNICEF and on the basis of that the petitioner got advance license bearing No. P/L 2049359 dated 8-1-1993 for import of 30 MT of Art paper and art card coated/uncoated for the CIF value of Rs. 7,54,000/- with a condition to export the book for the FOB value of Rs. 10,27,586/- within a period of 9 months commencing from the day of clearance of the first consignment of the imported raw material.
3. Petitioner contended that UNICEF made a payment of US $ 36,404/-and in respect of payment received from the UNICEF the petitioner bank, Punjab National Bank issued a bank realization certificate.
4. A show cause notice for taking action for non fulfillment of export obligation was issued to the petitioner to furnish DEEC books duly filled in by the Custom; provisional certificates; bank realization certificates and statement of import and export duly certified by the CA and Modvat declaration. After hearing the petitioner, a penalty of Rs. 15 lakhs has been imposed under Section 11(2) of Foreign Trade Development and Regulation Act, 1992 by order dated 30-12-1996 by Joint Director General of Foreign Trade.
5. Aggrieved by the order of the Joint Director General of Foreign Trade dated 30-12-1996 an appeal was filed before Director General of Foreign Trade and by letter dated 12-12-2001 the petitioner was directed to submit a bank guarantee of Rs. 1 lakh in the prescribed format as condition for dispensation of pre-deposit of penalty amount before the date of hearing which was fixed on 29-1-2002 at 3 PM.
6. Since the petitioner did not comply with the order and deposited a bank guarantee for Rs. 1 lakh, the order dated 15-6-2004 dismissing the appeal for non compliance of condition of dispensation of pre-deposit of penalty was passed which is challenged by the petitioner in the present writ petition.
7. The petitioner has since complied with the condition of pre-deposit and has furnished a bank guarantee of Rs. 1 lakh.
8. The petitioner has contended that the managing partner of the petitioner firm who was well conversant with the day to day activities had expired and the other partner of the petitioner firm was also suffering from cancer and was bed ridden for last many years. On account of demise of the managing partner and the extreme illness on account of another partner suffering from cancer the order directing the petitioner to furnish a bank guarantee for a sum of Rs. 1 lakh as a condition for dispensation pre-deposit of penalty amount could not be complied with earlier.
9. Considering the facts and circumstances it is apparent that there is sufficient cause in the facts and circumstances to condone the delay in furnishing the bank guarantee as a condition for pre-dispensation of the penalty amount subsequently by the petitioner.
10. The learned counsel for the respondent, Ms. Monica Garg also accepted that since the petitioner has furnished a bank guarantee of Rs. 1 lakh and has complied with the order directing the petitioner to furnish the bank guarantee and contended that the respondents will consider the appeal of the petitioner on merits.
11. Consequently, considering the facts and circumstances and the fact that the petitioner has now submitted a bank guarantee as a condition of dispensation of pre-deposit of penalty and there is sufficient reason for not submitting the bank guarantee earlier, the writ petition is allowed and the appeal filed by the petitioner vide letter dated 28-2-1997 against the adjudication order No. 3/102/AM96/ECA/CLA/2596 is revived and restored which was dismissed on account of non compliance of condition of dispensation of pre-deposit of penalty amount and the respondents are directed to decide the appeal on merits in accordance with law. With these directions the writ petition is disposed of and the parties are directed to appear before the Additional Director General of Foreign Trade on 15-11-2006 at 3 PM who will decide the appeal on merits in accordance with law.
12. A copy of this order be sent to the Additional Director General of Foreign Trade and copy of this order be given dusty to the parties.
