2010 (10) TMI 55 - HC - Customs

Penalty - Contravening the provisions of Section 4-I of the Import & Export (Control) Act, 1947 - Held that - Section 4-I is attracted when the goods have been imported under any licence and such goods have been used or utilized otherwise than in accordance with the conditions of such licence or letter of authority - no finding by the ADGFT that the Petitioner has either misutilised or misdeclared the imported goods - Petitioner had stated that it has utilized the imported goods in the manufacturing of video cassette shells. It could not export those goods on account of labour unrest. It cannot, therefore, be concluded that there was either misutilisation or misdeclaration by the Petitioner to attract Section 4-I (1) (a) of the IEC Act - order dated 22nd April 1996 passed by the ADGFT and order dated 12th August 1997 passed by the ACC are hereby set aside

Issues Involved:
1. Validity of the penalty imposed by the Additional Director General of Foreign Trade (ADGFT) under Section 4-I of the Import & Export (Control) Act, 1947 (IEC Act).
2. Applicability of the IEC Act to the permission letter issued for import under the 100% Export Oriented Unit (EOU) scheme.
3. Legality of imposing two separate penalties for the non-fulfillment of export obligations.

Issue-wise Detailed Analysis:

1. Validity of the Penalty Imposed by ADGFT:
The petitioner was aggrieved by the impugned order dated 22nd April 1996, passed by the ADGFT, which levied a penalty of Rs. 55 lakhs for contravening Section 4-I of the IEC Act. The petitioner argued that the penalty was unjust as a 10% penalty had already been imposed by the Secretariat of Industrial Approvals (SIA). The petitioner contended that the impugned order did not specify which sub-clause of Section 4-I was violated, making the penalty order legally unsustainable. The court found that the ADGFT's order lacked clarity on which specific provision of Section 4-I was breached, thus indicating non-application of mind and rendering the penalty order invalid.

2. Applicability of the IEC Act to the Permission Letter:
The petitioner argued that the permission letter allowing the import of goods under the 100% EOU scheme should not be considered a "licence" under the IEC Act. The court, however, interpreted the permission letter dated 4th November 1985, along with the subsequent agreement and the Open General Licence (OGL) order, as constituting a licence. This interpretation was supported by the clauses in the agreement and the OGL order, which outlined the conditions and penalties for non-compliance, thereby affirming that the IEC Act was applicable.

3. Legality of Imposing Two Separate Penalties:
The petitioner contended that imposing two separate penalties for the same non-fulfillment of export obligations was not permissible. The court noted that the SIA's penalty was independent of the penalty under the IEC Act. The ACC upheld that the permission letter was equivalent to a licence and that non-fulfillment of export obligations could be construed as misutilisation or misdeclaration under Section 4-I (1) of the IEC Act. However, the court disagreed with this reasoning, stating that the failure to meet export obligations did not explicitly fall under any sub-clause of Section 4-I, and thus, the penalty imposed by the ADGFT was legally unsustainable.

Conclusion:
The court set aside the impugned orders dated 22nd April 1996 by the ADGFT and 12th August 1997 by the ACC, finding them unsustainable in law. The writ petition was allowed, and the penalties imposed were invalidated due to the lack of specific legal grounds under Section 4-I of the IEC Act. The court emphasized the necessity for penalty orders to clearly indicate the precise provision under which the penalty is being imposed.

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