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TMI Blog2010 (3) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... r set aside. Petition allowed. - 4719 of 2006 - - - Dated:- 19-3-2010 - S. Muralidhar, J. Shri Ajay Veer Singh, Advocate, for the Petitioner. Shri Ravinder Aggarwal, CGSC, for the Respondent. [Judgment]. - The Petitioner seeks to challenge an order dated 15th December 2005 passed by the Additional Director General of Foreign Trade (ADGFT), dismissing its appeal against the Adjudication Order No. 3/33/AM-02/ECA/CAL/132 dated 9th October 2002, passed by the Deputy DGFT whereby a fiscal penalty of Rs. 2 crores was imposed on the Petitioner and its directors for under-invoicing the items imported against the Value Based Advance Licence (VBAL.) dated 6th April 1984. 2. The Petitioner obtained the above VBAL. for the CIF value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned therein does not appear to be correct. We therefore request you to delete the quantity shown in col. 3 of the aforesaid licence." 5. This request was reiterated by further letter dated 12th August 1994. It is stated that thereafter the Additional DGFT deleted the quantity and after deletion in column 3 the order reads as "description of goods.....Riboflavine 5.1 KG.....Quantity restriction is deleted". The Petitioners have enclosed with this petition a copy of the licence with the deletion. It is stated that pursuant to the VBAL, a Lease Agreement Undertaking (LUT) under the Duty Exemption Scheme was drawn up between ADGFT and the Petitioner on 7th June 1994. By a letter dated 5th August 1994, the ADGFT accepted the LUT for a va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st at 24% per annum and also surrender the REP Licence/Exim scrips. 8. Aggrieved by the above order, an appeal was filed before the ADGFT. Meanwhile another show cause notice was issued on 18th May 2001 by the DGFT requiring the Petitioner to appear before him on 4th June 2001. By a letter dated 4th June 2001, the Petitioner requested for an adjournment stating that its Managing Director was not present in the city. A further notice dated 26th June 2001 was issued from the office of the Joint DGFT asking the Petitioners to show cause why action should not be taken for imposition of penalty under Section 11(2) of the Foreign Trade (Development Regulation) Act, 1992 [hereinafter "FT (D R) Act"]. Thereafter the Petitioner received an ex p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully realized and consequently there was no violation. 10. In the impugned order of the Addl. DGFT, the only ground for rejecting the Petitioner's appeal is that despite opportunities, the Petitioner had failed to produce the copy of the DEEC book. By an order dated 27th April 2009, this Court had directed the Petitioner to produce a copy of the letter/application seeking permission to import Riboflavine in which the price of the raw material was mentioned at US $ 2450.5 per kg. The Petitioner was not able to produce the said document. 11. In the instant case, the Petitioner was issued a VBAL on 6th April 1994 with the condition that it could import 5.1 kg Riboflavine. The further condition was that it would export 10 lakh 5 mg Riboflav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the contents of the para 12 of the writ petition are admitted to the extent that the party had submitted Bank Realization Certificate and did not submit other related documents i.e. Export DEEC Book (in original) duly logged by Customs and Shipping, Bill in original, Bill of lading and invoice showing fulfillment of export obligation." 12. Therefore, what is held against the Petitioner is the non-submission of the export DEEC book in original duly logged by the customs, the shipping bill in original, the bill of lading and the invoice showing fulfillment of export obligation. As regards the latter it appears that only the DEEC book was awaited from the Customs Authorities as it was not available with the Petitioner. It is pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents were not enclosed in the show cause notice. It has also not been enclosed with the counter affidavit in response to this writ petition. On the other hand, the Petitioner has repeatedly stated that the said documents are not available with it but are available with the customs authorities. Merely granting more time to the Petitioner to produce documents that it did not have, was not going to solve the problem. Either the Joint DGFT could have furnished the documents received by it from the customs authorities or it could have summoned the documents straightway from the customs authorities. It did not choose to do either. 15. In the circumstances, the procedure adopted by the ADGFT does not appear to be reasonable. 16. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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