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Judgment
Indira Banerjee, J.—In this writ application the Petitioner has inter alia challenged a notice of personal hearing issued to the Petitioner from the office of the Deputy Director of Foreign Trade, Cuttack.
The Petitioner No. 1 inter alia carries on business of rendering maritime transport services as defined in appendix 36 of the Foreign Trade Policy for the years 2004 to 2009.
Pursuant to the foreign trade policy for the years 2004 to 2009, the Respondent No. 1 introduced a scheme of duty free credit entitlement of 10% service charges realised in foreign exchange.
Pursuant to an application made by the Petitioner No. 1, the Petitioner No. 1 was granted duty credit entitlement in the form of licence No. 2310000887 dated 24th November 2004 for a credit amount of Rs. 22,36,041/-.
It is contended that in calculating the duty credit entitlement the Petitioner No. 1 has not only taken into consideration the foreign inward remittances through the Indian Overseas Bank, Kolkata, but also foreign inward remittances routed through M/s. Imperial Shipping Private Limited to the Hongkong & Sanghai Banking Corporation, Chennai.
A show-cause notice No. 23/37071/00002/AM 05 was issued to the Petitioner No. 1 calling upon the Petitioner No. 1 to show cause why its licence should not be cancelled u/s 9 of the Foreign Trade (Development and Regulation) Act, 1992 and why action of physical penalty should not be taken against the Petitioner No. 1 and its directors in terms of Section 11 Sub-section (2) of the said Act. A similar notice was also issued to M/s. Nirupam & Associates, Chartered Accountants who issued the certificate certifying turnover of the Petitioner No. 1.
In the show-cause notice it was alleged that the turnover shown had been inflated. The details of the allegations would appear from the show-cause notice, a copy whereof has been annexed to the writ petition.
In response to the aforesaid show-cause notice one of the directors of the Petitioner No. 1 appeared before the Respondent No. 4 on 31st March 2006 and submitted a written representation. However, in the meanwhile by an order dated 10 March 2006 the Respondent No. 4 imposed penalty of Rs. 5,00,000/- on the Petitioner No. 1 and Rs. 10,000/- each on the Petitioner Nos. 2 to 5 and further directed the Petitioners to refund Rs. 21,62,000/- alongwith 15% interest from the date of import till the date of payment.
Aggrieved by the aforesaid order the Petitioners preferred an appeal u/s 15 of the Foreign Trade (Development & Regulation) Act, 1992 and also filed an application under the third proviso of Section 15 of the said Act of 1992 for dispensation of pre-deposit of penalty imposed on them.
Aggrieved by an order dated 28th August 2006 directing pre-deposit of the entire penalty the Petitioner filed a writ application in this Court.
The Court issued directions for affidavits and passed an interim order restraining the Respondent No. 3 from dismissing the appeal on the ground of non-deposit of penalty. The aforesaid interim order, which was initially till three weeks after the puja vacation, was from time to time extended.
A memo No. 11/36/2006-07/ECA.1/1920 dated 12th January 2009 was issued by the Director General of Foreign Trade informing the Petitioner that the appeal had been reconsidered by the appellate authority and the appellate authority had decided to dispose of the appeal on merit without pre-deposit of the penalty amount. The appellate authority granted the Petitioners a personal hearing on 4th February 2009.
In view of the aforesaid memo dated 12th January 2009 the writ application was disposed of by Soumitra Pal, J. by an order dated 25th January 2008 whereby the order dated 4th September 2006 regarding pre-deposit was set aside and quashed.
The appeal was thereafter heard on 12th and 16th March 2009 and an interim order was passed by the appellate authority remitting the case back to the Joint Director General, Kolkata for the limited purpose of summoning the concerned representative of M/s. Nirupam Associates, Chartered Accountants. The Appellant was to be permitted to cross-examine the said chartered accountant and the depositions were to be forwarded to the appellate authority for final disposal of the appeal.
A notice of personal hearing was issued by the Deputy Director General of Foreign Trade, Cuttack calling upon the Petitioner to appear before him in connection with the cross-examination of the chartered accountant. The notice is under challenge.
On behalf of the Petitioner it is submitted that the Appellate Authority i.e. Additional Director General of Foreign Trade remitted the case back to the Joint Director General of Foreign Trade, Kolkata for the limited purpose of summoning the concerned representative of M/s. Nirupam Associates, Chartered Accountants.
It is submitted that the order in appeal before the appellate authority was passed by the Joint Director General of Foreign Trade, Kolkata. The case was remitted back to the said Joint Director General of Foreign Trade, Kolkata. The appeal is still pending. There could be no question of any hearing or of any cross-examination before the Deputy Director of Foreign Trade, Cuttack.
It is difficult to appreciate how any notice could have been issued from the office of the Joint Director General of Foreign Trade, Cuttack when there was an express interim order of the Appellate Authority and Additional Director General of Foreign Trade in a pending appeal remitting the case back to the Joint Director General of Foreign Trade, Kolkata for the limited purpose of summoning the representative of M/s. Nirupam Associates, Chartered Accounts for cross-examination.
On behalf of the Respondent Ms. Bhattacharya submits that the licence was issued from Cuttack. The Head Office of the Joint Director General of Foreign Trade is located at Cuttak and the zonal office located at Kolkata.
Be that as it may, the fact remains that the order under appeal was passed by the Joint Director General of Foreign Trade and the appeal therefrom is pending. The appellate authority remitted the matter back to the Joint Director General of Foreign Trade, Kolkata. Without appropriate modification of the order of the appellate authority, there could be no question of any other authority hearing the case.
The notice impugned is thus set aside and quashed.
It is made clear that this Court has not considered the respective contentions of the parties on the merits of the claim.
Affidavits not having been called for, the allegations made in the writ petition shall be deemed not to have been admitted by the Respondents.
Let urgent certified copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities.