2024 (12) TMI 304 - HC - Customs

Liability for the payment of fiscal penalty under Section 11 (2) of the Foreign Trade (Development and Regulation) Act, 1992 - failure to give the petitioner any show cause notice or opportunity of hearingviolation of principles of natural justice - HELD THAT - Based on the material on record, it is satisfying that no show cause notice was issued to the petitioner, and consequently, no opportunity for a hearing was also granted to the petitioner. The impugned orders and the liabilities imposed upon the petitioner based thereon undoubtedly visit the petitioner with civil consequences. Accordingly, minimum compliance with the principles of natural justice and fair play was a must. On this short ground, the impugned orders dated 28 March 2018 and 11 October 2017 set aside. Petition allowed.

Summary

Issues:
Challenge to order dismissing appeal against fiscal penalty under Foreign Trade Act based on lack of show cause notice and opportunity for a personal hearing.

Analysis:
The petitioner challenged an order dismissing their appeal against a fiscal penalty under the Foreign Trade Act, claiming they were only an Independent Director and had not been granted a show cause notice or a personal hearing before being held liable for the penalty. The respondents argued that show cause notices were issued to all individual directors, including the petitioner, and that the petitioner had a personal hearing before the Adjudicating Authority. The main issue was whether the petitioner had been given a fair opportunity to defend themselves.

The High Court examined the contentions of both parties and focused on the crucial aspect of whether the petitioner had received a show cause notice and an opportunity for a hearing. The Court noted that the respondents failed to provide evidence showing that the petitioner had indeed been given a show cause notice and an opportunity for a hearing, despite relying on a paragraph in the impugned order. Upon reviewing the relevant documents, the Court found that the show cause notice was addressed to the company and specific directors, but not to the petitioner, who was an Independent Director. This lack of notice to the petitioner was a critical factor in the Court's decision.

The Court also highlighted discrepancies regarding the dates of the show cause notices mentioned in the impugned order, indicating a lack of clarity and proper documentation in the proceedings. Ultimately, the Court concluded that the absence of a show cause notice and an opportunity for a hearing for the petitioner violated principles of natural justice and fair play. As a result, the Court set aside the impugned orders dated March 28, 2018, and October 11, 2017, emphasizing the importance of minimum compliance with principles of natural justice in imposing civil liabilities.

Although the Court allowed the respondents the option to issue a proper show cause notice and ensure compliance with natural justice principles if they wished to proceed against the petitioner, the decision to set aside the previous orders was based on the fundamental lack of procedural fairness. The Court clarified that all other contentions raised by the parties, such as the petitioner's status as an Independent Director and resignation, were left open for future consideration. The ruling made the rule absolute without any cost order, directing all concerned parties to act in accordance with the Court's decision.