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TMI Blog2017 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... - it is not necessary to go into the last contention of the petitioners of the penalty being excessive. The impugned order as confirmed by the appellate authority is set aside. Since we have set aside the impugned order on the ground of lack of opportunity, this would not prevent the department from initiating fresh action against the petitioners, if otherwise, permissible in law - petition allowed - decided in favor of petitioner. - Special Civil Application No. 12597 of 2016 - - - Dated:- 16-9-2016 - Akil Kureshi and A.J. Shastri, JJ. Shri Paresh M. Dave, Advocate, for the Petitioner. Shri Nikunt K. Raval, Advocate, for the Respondent. ORDER The petitioners have challenged an order dated 14-2-2014 passed by the Deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be cancelled for violation of provisions of the SEZ Act, 2005 and SEZ Rules, 2006. (ii) The duty of customs amounting to ₹ 1,91,907/- (One Lakh Ninety-One Thousand Nine Hundred Seven) leviable on the offending goods should not be recovered from them along with applicable interest. (iii) Penalty should not be imposed on them as per provisions of the Rule 25 of the SEZ Rules, 2006 and under the Section 9 of FT(D R) Act, 1992. The notice is required to submit their written reply latest by 16-12-2013 before 11:00 hrs. The Noticee may appear for personal hearing before the Unit Approval Committee on 17-12-2013 at 11:00 hrs. 2.2 The company participated in such proceedings and opposed the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation) Act, 1992, as amended from time to time for their act of diverting the goods to Domestic Tariff Area which were supposed to be brought in KASEZ mainly for the purpose of exports; (iii) I uphold the demand of Customs duty amounting to ₹ 1,91,907/- (One Lakh Ninety-One Thousand Nine Hundred Seven) leviable on the offending goods along with applicable interest and order to be recovered from them. (iv) I impose personal penalty of ₹ 5,00,000/- (Rupees Five Lakhs only) on each director of M/s. Safari Fine Clothing Pvt. Ltd., KASEZ for their action and omission done by them in the case under Section 25 of the SEZ Act, 2005 i.e. on (1) Shri Daljeet Singh Sandhu (2) Shri Kuldeep Singh Grewal (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1.91 lacs (rounded off) was excessive and arbitrary. 5. On the other hand, learned advocate Mr. Nikunt Raval for the department opposed the petition contending that the show cause notice contained allegations of breach of Section 11 of the FT(D R) Act, 1992. Omission to specifically mention Section 11(2) of the FT(D R) Act, 1992, in the show cause notice therefore would not be fatal. The petitioners at any rate had sufficient notice and reasonable opportunity to defend themselves against the penalty. 6. Having heard the learned advocates for the parties and having perused the documents on record, we may recall in the show cause notice the competent authority raised the following three proposals. (i) Why the letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade policy from time to time. Under sub-sec. (2) of Section 11 the competent authority could impose penalty where any person makes or abets or attempts to make any export or import in contravention of any provision of this Act or any rules or orders made thereunder or the foreign trade policy, he shall be liable to a penalty of not less than ten thousand rupees or five times the value of the goods or services or technology in respect of which any contravention is made or attempted to be made. Being penal provision, surely the penalty cannot be imposed against any person or entity without reasonable opportunity of being given to defend himself. The show cause notice contained no proposal for any penalty under Section 11 of the FT(D R) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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