9911796707
TMI Blog2005 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... main challenge on the ground of discrimination is concerned, it would suffice to say that the plea of discrimination is never available in an act of illegality. An illegal order cannot constitute the basis for a legitimate complaint of discrimination. Thus, an illegal or unwarranted order cannot be made the basis of issuing a writ compelling an authority to repeat that illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Hence, we reject the contention. Thus, both the petitions, being devoid of any merit, are dismissed accordingly. X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6-9-1999. 6. On the basis of some information received by respondent No. 1 to the effect that some exporters had obtained DEPB on the basis of forged bank certificates of Export and Realisation, on 11-6-2001, two show cause notices under Section 14 for action under Sections 9(4) and 11(2) of the Act, were issued to the petitioner, inter alia, pointing out that their bankers had stated that they have not issued bank realisation certificate produced by them at the time of issuance of DEPB. The petitioner was, thus, called upon to show cause as to why penalty under Section 11(2) of the Act should not be imposed upon it and the DEPB licence should not be cancelled ab initio. 7. In reply to the show cause notices, the petitioner stated that payment for the material exported had actually been realised through proper banking channel and if any forged bank realisation certificate had been filed with respondent No. 1, it had been done by an Assistant of the Chartered Accountant, without their knowledge. 8. Finding the explanation, so furnished, to be unsatisfactory, respondent No. 1, in exercise of powers vested in him under Section 9(4) of the Act read with Rule 10(a) of the Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y these were received after the issue of DEPB, the petitioners had played fraud with the authorities and therefore, they do not deserve any relief. It is argued that since the forged certificates were signed by the partners themselves, the submission that these were furnished by a representative of the Chartered Accountant, does not absolve the petitioners from their liability under the Act. It is urged that since imports by the petitioners were cleared without payment of customs duty on the basis of duty credit allowed in the DEPB, which was obtained on the basis of a forged bank certificate. Section 11(2) of the Act is clearly attracted. 12. We are of the view that both the petitions are bereft of any merit. The entire claim of the petitioners was based on falsehood. It is not in dispute that furnishing of bank certificate of exports and realisation of export proceeds was a pre-requisite for issue of DEPB. Admittedly, the bank certificates furnished were fabricated documents. The observations of the former Lord Chief Justice of England, Sir Edward Coke, more than three centuries ago, that "fraud avoids all judicial acts, ecclesiastical or temporal", noticed by the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; means only revocation of a licence which is otherwise valid and operative and that too retrospectively. In our opinion, the power to cancel a licence includes cancellation of both, whether unutilised or utilised. 14. True, the cancellation of a licence entails severe consequences but in a case, like the present one, where the claim at the threshold was based on a forged document, in absence whereof an application for issue of DEPB was not maintainable, cancellation of the pass books cannot be said to be a harsh punishment, disproportionate to the malfeasance committed, as is sought to be pleaded on behalf of the petitioners. We do not find any equity in favour of the petitioners. 15. As regards the applicability of the provision of sub-section (2) of Section 11 of the Act, it will be useful to refer to Section 3 of the Act, which confers power on the Central Government to make provisions relating to imports and exports. The section reads as follows : Powers to make"3. provisions relating to imports and exports. - The Central Government (1) may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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