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TMI Blog2012 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfactory, and after giving an opportunity of personal hearing, to which the petitioner did not respond, had passed an order under section 9 (4) and section 11 (2) of the Act and under Rule 10(b) of the Foreign Trade (Regulation) Rules, cancelling the licence of the petitioner and directing payment of customs duty and interest and imposing fiscal penalty of Rs. 20,28,454/- besides imposing fiscal penalty of Rs. 1,00,000/- on each Director of the firm for non-fulfillment of export obligation and for payment of other amounts. Though appeal could have been preferred under section 15 of the Act, the petitioner no.1 chose not to avail itself of the said forum. Rather it filed a representation dated 19th December, 2006 requesting the respondent no.4 to waive penalty and interest imposed by the order dated 22nd November, 2006. According to the petitioner, however ignoring the representations, the order dated 7th December, 2010 suspending the Code was passed by the respondent no.3. Aggrieved, this writ petition has been filed. Mr. Ranjan Deb, learned Senior Advocate for the petitioner, relying on the statements in the writ petition had submitted that "Adjudicating Authority", under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as after the petitioner did not respond to the notice for hearing, order dated 22nd November, 2006 was passed imposing penalty, and since it was not paid, Code was suspended and as in section 11(4) legislature had consciously excluded the right to be heard, submission regarding violation of natural justice has no basis. Countering the argument that suspension of Code was illegal as Scheme regarding rehabilitation of the petitioner is pending before the Board, it was submitted that as there is no order of restraint with regard to the recovery of penalty and dues, suspension of Code was just and proper. Learned Counsel for the parties had relied on several judgements in support of their respective submission which shall be dealt with appropriately. During hearing the attention of Mr. Deb and Mr. Tarafdar was drawn to a judgement of the Division Bench in Jessop and Company Limited and another vs. Union of India and Others: 2010(2) CHN (Cal)53 where the issue was whether the writ petitioner was entitled to get an opportunity of hearing before any order of suspension of Code is passed under Section 11(4) of the Act and counsel had advanced their respective arguments on the said judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spension cancelling importer-exporter code number, a hearing must be given. When the effect in the order of Section 8 is same as in Section 11(4), we find no reason why similar opportunity should not be read inherently in the sub-section. In a large number of decisions of Supreme Court and this Court it has been held in a particular provision of law though there does not mention express provision of hearing but compliance of natural justice, namely, opportunity of being heard inheres in the sub-section, if effect thereof results in affectation some right." (Emphasis supplied) Though it was submitted by Mr. Tarafdar that the said judgement in appeal does not take note of the other provisions in the Act and there is no deliberation on the judgements cited before the Single Judge, as the issue is concluded by the said judgement of the Division Bench, in my opinion, the petitioner was entitled to hearing before suspension of Code. Therefore, I do not deal with the judgments cited. With regard to the second issue as to whether the respondent no.3 had the power and authority or jurisdiction to suspend the Code, it is necessary to examine section 11(4) of the Act which, before amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding confiscation and does not speak of suspension of Code for non-payment of penalty. In this regard it is appropriate to refer to the judgment in Shri Ishar Alloy Steels Ltd vs. Jayaswals Neco Ltd: (2001) 3SCC 609 relied on by the petitioner where the Apex Court while discussing the use of indefinite article "a" and definite article "the" had held as under:- "9. The use of the words "a bank" and "the bank" in the section is an indicator of the intention of the legislature. The former is an indirect (sic indefinite) article and the latter is prefixed by a director (sic definite) article. If the legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the properties of the industrial company or for the appointment of a receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board.................." In the instant case admittedly, in respect of the petitioners, a sanctioned scheme passed by the Board is being implemented. Though, as noted, under section 22(1), during implementation of the sanctioned scheme no proceedings for execution, distress or the like against any of the properties of the industrial company shall lie or proceeded with except with the "consent" of the Board, however, in the case in hand, order has been passed directing suspension of Code for non-payment of penalty. Evidently the object in suspending the Code is to pressurise the petitioner to pay the penalty imposed pursuant to the adjudicating order. Question is can such suspension of Code be equated with "execution" proceedings? True suspension of Code may not be strictly in the nature of execution proceedings. However, the use of the words "or the like" in section 22(1) means such proceedings for recovery of penalty from the petitioner are akin to proceedings which are summary in nature. Now as under section 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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