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TMI Blog2006 (3) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... g allotments of imported goods from canalising agencies such as STC/MMTC. 4.The order dated 16-3-1992 (Exhibit "O") is the order passed by the appellate authority against the order of debarment dated 25-9-1991. 5.The order dated 12th May, 1994 (Exhibit "Q") is the order passed by the appellate authority in the appeal from an order imposing the fiscal penalty of Rs. l,00,00,000/- for not fulfilling export obligation. 6.In so far as debarment order dated 25th September, 1991 and the order dated 16th March, 1992 passed by the appellate authority affirming the debarment order are concerned, the learned counsel for the petitioner submitted that in view of long passage of time, the petitioner is not desirous of pressing the grievance concerning the said two orders. 7.The challenge in the writ petition, thus, remains in respect of the order dated 19th August, 1991 passed by the Additional Chief Controller of Imports and Exports imposing the fiscal penalty of Rs. 1,00,00,000/- and the appellate order dated 12th May, 1994 rejecting the appeal challenging the order dated 19th August, 1991. 8.The petitioner received an imprest licence No. P/L/3066303 dated 29-3-1995 for Rs. 1,30,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere being surrendered. The petitioner prayed that since the valid REP licenses equivalent to the value of the imprest licence utilised have been surrendered, the obligation may be treated as discharged and the show-cause notice be withdrawn. 12.The Additional Chief Controller of Imports and Exports, after hearing the petitioner, found that throughout the show-cause notice, the petitioner did not indicate as to what happened to the imported raw materials valued at Rs. 1,30,00,000/- The authority was of the view that the petitioner sold the entire imported raw materials and, to cover misutilisation, the REP licences were surrendered. In the opinion of the authority, in the absence of imported goods being accounted for at any stage during the course of show cause notice proceedings, there was no option but to conclude that the petitioner was guilty of wilful default with ulterior motives of misutilisation of imported goods. Consequently, the authority imposed fiscal penalty of Rs. 1,00,00,000/- on the petitioner and its partners exclusive of the value of licenses that they surrendered vide his order dated 19th August, 1991. 13.The appeal preferred by the petitioner against the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was fixed from the 2nd April, 1985 to 1st October, 1985 is also not in dispute. Admittedly, during this period not even partial export obligation was discharged. Even after the expiry of the export obligation period, the petitioner imported the uncut and unpolished diamonds and cleared the consignment against the said imprest licence on 20th December, 1985 but took no steps in discharging export obligation. The petitioner claims to have effected export of part of the imported diamonds in discharge of the export obligation to the extent of CIF value of Rs. 14,36,462/- having FOB value of Rs.17,14,417.40 but no proof to that effect was submitted by the petitioner before the concerned authority. As the petitioner failed to fulfil its export obligation, on March, 1987, show-cause notice was issued by the Joint Controller of Imports and Exports, Bombay as to why the petitioner be not declared defaulter for non-fulfilment of the export obligation. The petitioner does not dispute that on 15th March, 1989, the Joint Controller of Imports and Exports, Bombay issued forfeiture order. It was only thereafter that on 12th April, 1989, the petitioner made an application for extension of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said export orders the shipment period mentioned was that the goods ought to be shipped by the end of July, 1985. Sir, in this connection we would like to state that the goods happened to be Imported/Cleared only late June and July 1985 and the delay being caused by the Importers due to non-availability of the required goods and with the result that within a very short span of about 10 to 12 days it was virtually impossible to have the goods manufactured and shipped to the clients vide their Orders. The shipment period deadline coming to an end, the foreign clients telephonically cancelled/revoked their Orders and thus considerable and grave/tremendous responsibilities be fell on the Firm. We were left with no alternative but to search desperately for alternative avenues for foreign clients so that exports could be effected and export obligation fulfilled. Further, just before the period of grant of licence, the Firm also happened to be reconstituted and thus there were considerable financial problems also on the business activities with the result the export obligation remained to be fulfilled. Sir, we have to state that we vide our letter dated 20-3-1989 Jt. Chief Controll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so amply failed to honour export obligation commitment, I am inclined to believe that they had mis-utilised the goods valued at Rs. 1,30,00,000/- imported against Imprest Licence No. P/L/3066303 dated 29-3-1985 without discharging export obligation. I, therefore, hold them guilty of contravening Section 4-I (I) and (a) of the Imports and Exports (Control) Act, 1947, as amended. In exercise of the powers vested in me under Section 4-K of the said Act, I hereby impose fiscal penalty of Rs. 1,00,00,000/- (Rupees One Crore only) on M/s. Sudhir Diamonds, 410, Prasad Chambers, Opera House, Bombay and its partners Shri Sudhir K. Shah, Shri Kantilal Virchand Shah and Shri Ramesh Chandra Babaldas Mehta. The penalty of Rs. 1 crore imposed on the firm and its partners is exclusive of the value of the licences they have surrendered." 22.A close look at the reasons set out by the concerned authority while imposing fiscal penalty of Rs. 1,00,00,000/- in the impugned order leaves no manner of doubt that the said authority was satisfied that non-fulfilment of the export obligation by the petitioner was on account of the lapse and/or slackness. It was not necessary on the part of the concerned au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst time the application for extension of the period of export obligation made on 12th April, 1989 (more than 3½ years) after the period of export fulfilment of obligation had lapsed clearly shows that the failure to fulfil the export obligation under the imprest licence was due to deliberate lapse or in any case, lapse or slackness on the part of the petitioner and the facts clearly justify the imposition of fiscal penalty to the tune of Rs.1,00,00,000/- irrespective of surrender of valid REP licences. 24.The petitioner is guilty of wholesale contravention of the Imports and Exports (Control) Act, 1947, the Import-Export Policy, 1985-88 and the licence granted to the petitioner. 25.We, therefore, find no justification to interfere in the impugned orders. 26.As the petitioner has not paid the penalty for more than 10 years despite that there was no stay order by this court and the respondents have been deprived of its revenue, we hold that the respondents shall be entitled to recover the penalty of Rs. 1,00,00,000/- from the petitioner with the simple interest of Rs. 6% from 12th May, 1995. 27.Writ petition is, accordingly, dismissed with costs which we quantify at Rs. 10 ..... 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