2019 (7) TMI 1261 - HC - Customs

Court nullifies order due to procedural errors, orders fresh hearing by appropriate officer

The court set aside the impugned order due to insufficient time granted to respond to the show cause notice and the passing of the order by a different ... Validity of order if not signed by the officer who has held personal hearing - Service of notice - grant of time in the SCN - Section 8(1)(c) of Foreign Trade Development Act - HELD THAT:- This Court is convinced that time granted, which is less than 48 hours, is too short and certainly does not qualify as reasonable time within the meaning of Section 8 of Foreign Trade Development Act, more particularly Section 8(1)(c) of Foreign Trade Development Act. The order-in original as served on the writ petitioner, shows that it has been signed by an Officer other than the one before whom the writ petitioner appeared for personal hearing, the records show that the order has, in fact, been passed by the same officer before whom the writ petitioner has appeared and the other officer has merely communicated the said order. - In any event, the order has to be signed by the Officer who has passed the order and in instant case, the order has been signed by an Officer who is not the one, who held the personal hearing . Therefore, with regard to the second point raised by the writ petitioner also, this Court is convinced that the same Officer, who held the personal hearing ought to have passed the impugned order and therefore, the impugned order is liable to be set aside on this ground also. This Court is of the considered view that it would serve the purpose to set aside the impugned order without expressing any opinion on merits and directing the second respondent to afford a fresh personal hearing, pass orders afresh after taking into account the response and records of the writ petitioner. This Court is informed that Joint Director General of Foreign Trade at Bangalore who will hold the personal hearing and hear the matter afresh is an Officer other than the Officer who issued the SCN dated 15.05.2019 (Shakuntala Naik) and the Officer who passed the order-inoriginal dated 17.05.2019 (Varun Singh) - Petition allowed by way of remand. Issues:1. Short time granted to respond to show cause notice2. Passing of order by a different officer than the one before whom the petitioner appearedAnalysis:Issue 1: Short time granted to respond to show cause noticeThe writ petitioner received a show cause notice (SCN) related to the Importer-Exporter Code (IEC) under the Foreign Trade Development Act. The petitioner argued that the time given to respond to the SCN was insufficient, being less than 48 hours. The petitioner expressed difficulties in responding due to the voluminous nature of the requested documents spanning 17 years. The court referred to Section 8 of the Foreign Trade Development Act, emphasizing the requirement of providing a reasonable opportunity for response. The court agreed that the time granted was inadequate and did not meet the standards set by the Act. The court concluded that the short time frame did not qualify as reasonable time under the law.Issue 2: Passing of order by a different officer than the one before whom the petitioner appearedThe petitioner raised concerns about the impugned order being passed by an officer different from the one before whom the petitioner appeared for the personal hearing. The respondent argued that the order was actually passed by the same officer but was signed by a different officer for communication purposes. The court found that the order should have been signed by the officer conducting the personal hearing. The court held that the impugned order was flawed in this aspect and needed to be set aside. The court decided to nullify the impugned order without expressing any opinion on the merits and directed a fresh personal hearing to be conducted by the Joint Director General of Foreign Trade in Bangalore. The court instructed that the new hearing should consider the petitioner's responses and records before issuing a fresh order.In conclusion, the court set aside the impugned order, emphasizing the importance of providing a reasonable time for response to show cause notices and ensuring that orders are passed by the appropriate officers. The court directed a fresh personal hearing to be conducted, allowing the petitioner to present their case adequately.