2023 (9) TMI 1201 - HC - Customs

Delay of 10 years in approaching this court - Time Limitation - SCN issued in 2001 but the order itself has been passed only in 2007 - jurisdiction of officer passing the impugned order - Imposition of dual penalties - rectifiable error or not - HELD THAT - Section 11(2) of Customs Act in terms of which this penalty has been imposed, prescribes a range between Rs. 10,000/- to five times the value of the goods. The CIF value in this case is Rs. 85,65,953/- and hence, going by the book, the office could have imposed penalty of five times of the aforesaid sum. He has however, restricted himself to less than twice the value of the goods. There is thus no apparent rectifiable error. Petition dismissed.

Summary

Issues:
1. Challenge to the delay in approaching the court.
2. Flaws in the impugned order - issuance of show cause notice, imposition of dual penalties, jurisdiction of the officer.
3. Delegation of power of enforcement-cum-adjudication.
4. Filing of writ petitions within the statutory limitation period.
5. Error apparent on the face of the record for seeking review under Section 17 of the Foreign Trade (Development and Regulation) Act, 1992.

Analysis:

Issue 1:
The petitioner challenged the delay in approaching the court, citing an order from 2007 being challenged in 2017 without any explanation for the 10-year delay. The court noted the lack of explanation for the delay and emphasized the importance of timely filing of petitions under the relevant statute. The court cited a Supreme Court judgment highlighting the necessity of filing writ petitions within the statutory limitation period, failing which the petition may be dismissed. Since no acceptable explanation was provided for the delay, the court dismissed the writ petition on grounds of laches.

Issue 2:
The petitioner raised concerns regarding flaws in the impugned order, specifically pointing out the delay between the show cause notice issuance in 2001 and the order in 2007, the imposition of dual penalties, and the jurisdiction of the officer passing the order. The respondent clarified that the power of enforcement-cum-adjudication had been delegated to the Deputy Director General of Foreign Trade by the Joint Director of Foreign Trade as per the relevant Act. The court noted that these issues should have been raised in appeal or in a timely writ petition, as emphasized by the Supreme Court in a previous judgment. Since the petitioner failed to provide a satisfactory explanation for the delay and did not raise the jurisdiction issue in the writ petition, the court dismissed the petition.

Issue 3:
The court addressed the delegation of power of enforcement-cum-adjudication to the Deputy Director General of Foreign Trade by the Joint Director of Foreign Trade, as per Section 13 of the Foreign Trade (Development and Regulation) Act, 1992. The court found this explanation satisfactory and noted that the issue had not been raised in the writ petition. Consequently, this aspect did not impact the dismissal of the petition.

Issue 4:
Regarding the filing of writ petitions within the statutory limitation period, the court reiterated the importance of adhering to the prescribed timelines. The court cited a Supreme Court judgment emphasizing the need for timely filing of writ petitions and the requirement for providing a valid explanation for any delays. Since the petitioner failed to offer any explanation for the delay in approaching the court, the petition was dismissed on grounds of laches.

Issue 5:
The petitioner made a last-ditch attempt by claiming an error apparent on the face of the record and sought a review under Section 17 of the Foreign Trade (Development and Regulation) Act, 1992. However, the court found this submission misconceived on merits. The court analyzed the quantification of the penalty and noted that there was no apparent rectifiable error in the penalty imposed, as it fell within the prescribed range under Section 11(2) of the Act. Consequently, the court dismissed the writ petition without costs, and the connected miscellaneous petitions were closed.