TaxTMI 
TaxTMI 
2011 (2) TMI 1146
X X X X Extracts X X X X
X X X X Extracts X X X X
....hem to prefer an appeal against the said ex parte order, and consequently hold that the said order on being served on the petitioner company shall be the date of service of the order. 2. Petitioner was granted Export Promotion Capital Goods Licence (in short EPCG Licence) on 13-8-1998. Based on the licence, petitioner is entitled to import capital goods on concessional rate of duty. Petitioner has to export goods for certain value in compliance of EPCG Licence within a particular period. Based on the EPCG Licence, petitioner imported shuttleless looms on 5-11-1998 for certain value. On 1-10-2004, petitioner submits statement of exports done by him to the second respondent, the Joint Director General of Foreign Trade. On 22-2-2005 the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntly, a penalty of Rs. 2,97,64,385/- was imposed. This order, according to the petitioner, was not served on him whereas the respondents 1 and 2 state that this order was dispatched on 14-9-2006 along with 41 others under ordinary postal covers. 4. Thereafter, for the purpose of recovery of the penalty as above, a communication was sent and delivered to the District Collector for recovery under the provisions of the Revenue Recovery Act. The above said communication dated 28-2-2007 was sent to the District collector, Coimbatore and the Chief Secretary, Chennai on 8-3-2007 by ordinary post. Based on the Penalty Order and communication issued by the second respondent to the District Collector, the Tahsildar, the third respondent initiat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds on which it is proposed to impose a penalty or to confiscate such goods or conveyance; and (b) to make a representation in writing within such reasonable time as may be specified in the notice against the imposition of penalty or confiscation mentioned therein, and, if he so desires, of being heard in the matter." Petitioner should also be given reasonable time to give a reply and shall be heard in the matter at request. Besides, Section 14 of the Act, there is no provision under the said Act, showing the manner in which the service of notice on the person concerned should be made. 7. Learned counsel for the petitioner referred to the provisions of Section 153 of the Customs Act, 1962 and Section 37-C of the Central Excise A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioner had no knowledge of the proceedings of the second respondent and thereby his valuable rights has been affected. Non-service of the original order of adjudication, imposing penalty ex parte, is good enough reason to set aside the impugned proceedings of the third respondent Tahsildar, as the order adverse to the petitioner has been passed by the second respondent without proper service as contemplated by law. The order for recovery is causing great prejudice due to infraction of law as above. 9. Thiru A.S. Vijayaraghavan, learned Senior Central Government Standing Counsel appearing for the respondents 1 and 2 submitted that since the Foreign Trade (Development and Regulation) Act or the Rules does not provide any particular mode ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cise Act, 1944, extracted above, it is clear that the notice should be sent by registered post. The proceedings initiated under the Foreign Trade (Development and Regulations) Act, 1992 in this case is based on import of certain goods by taking the benefit of partial duty exemption and for contravention of the export obligation, the penalty is imposed after adjudication. Therefore, the penal proceeding requires proper notice. 12. In the absence of particular mode of service in the Foreign Trade (Development and Regulation) Act, 1992, one has to necessarily fall back on the provisions of the General Clauses Act. The Central Excise Act, 1944 and the Customs Act, 1962 are separate, independent provisions and are self contained. In a case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der. There is no order in the eye of the law insofar as petitioner is concerned. The third respondent's proceeding to recover the penalty amount from the petitioner will, therefore, be arbitrary and prejudicial to the petitioner only on account of violation of principles of natural justice. 16. Along with the counter-affidavit and the documents filed, the second respondent has enclosed a copy of the order passed by the second respondent to the counsel for the petitioner and that should be taken as valid communication as on today and the petitioner is entitled to pursue the appeal remedy in accordance with the provisions of the Act and is entitled to challenge the penalty imposed. 17. Petitioner's counsel pleads that the plea of ....