Madras High CourtWP/13896/2017dismissed

M/S.Kothari Industrial v. Joint Director General Of

2023-02-13Honourable Dr Justice Anita Sumanth7 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13..02..2023 Coram THE HON'BLE DR.JUSTICE ANITA SUMANTH Writ Petition No.13896 of 2017 and W.M.P.Nos.15085 to 15087 of 2017 M/s.Kothari Industrial Corporation Ltd., Rep. by its Chairman & Managing Director, Mr.Pradip D.Kothari Having Office at No.114, Mahatma Gandhi Salai, Nungambakkam, Chennai 600034.

..... Petitioner -Versus1.Joint Director General of Foreign Trade, (Enforcement cum Adjudication) Government of India, Ministry of Commerce & Industry, Office of the Zonal Joint Director General of Foreign Trade, Shastri Bhavan Annexe-26, Haddows Road, Chennai 600 006.

2.Deputy Director General of Foreign Trade, (Enforcement cum Adjudication) Government of India, Ministry of Commerce & Industry, Office of the Zonal Joint Director General of Foreign Trade, Shastri Bhavan Annexe-26, Haddows Road, Chennai 600 006.

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3.The District Collector of Chennai, No.62, Rajaji Salai, Chennai 60001.

4.The Tahsildar, Egmore-Nungambakkam Taluk, Chetpet, Chennai 600031.

5.The Chief Manager, State Bank of India, Nungambakkam Branch, 110/1, Mahathma Gandhi Road, Nungambakkam, Chennai 600034.

.... Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the 1st respondent culminated in the proceedings vide Order No.1 of AM-07 (Issued from F.No.I (261)/ECA/CHE/AM-02/ADJ), dated -.04.2007 and to quash the same. For Petitioner : Mr.P.V.Balasubramaniam,SC for Mr.T.Mahendran For Respondents : Mr.K.Srinivasa Murthy, Senior Central Government Panel Counsel for RR1 and 2 Mr.Alagu Goutham, Government Advocate for RR3 and Mr.K.Ravindranath for R5 2 of

ORDER

The petitioner has challenged an order in original dated Nil-04-2007 by way of present writ petition which has been filed on 01.06.2017. No explanation is tendered in the affidavit to explain the delay of 10 years in approaching this court and even in the course of hearing before this court, there is no attempt to explain the intervening period of 10 years.

2. Instead the petitioner would seek to point out flaws in the impugned order to state that (i) the show cause notice was issued in 2001 but the order itself has been passed only in 2007, (ii) that the imposition of dual penalties is contrary to the Act and that (iii) the officer passing the impugned order does not have requisite jurisdiction to do so.

3. As regards the third submission, learned counsel for the respondent would point out that the power of enforcement-cum-adjudication had been delegated to the Deputy Director General of Foreign Trade by the Joint Director of Foreign Trade in terms of Section 13 of the Foreign Trade (Development and Regulation) Act, 1992. This explanation satisfies the Court quite apart from the 3 of

fact that this issue has not even been raised in the writ petition.

4. As regards the other two points raised, they touch upon the merits of the matter which had to have been agitated by the petitioner in appeal or if the petitioner were of the view that this Court should have been approached under Article 226 of the Constitution of India, in a timely fashion and within the period of statutory limitation provided. The Hon'ble Supreme Court in Assistant Commissioner (CT) v. Glaxo Smithkline Consumer Health Care Limited (C.A.No.2413/2020 dated 06.05.2020) has reiterated the position that even writ petitions must be filed within the period of limitation provided under the relevant statute, failing which there must be an explanation for delay to be considered on its strength by the Court. In the present case there is no explanation at all available, let alone an acceptable one. Thus, this writ petition is hit by laches and is dismissed in limine.

5. As regards a last ditch attempt, petitioner submits that there is an error apparent on the the face of record for which it may be permitted to seek review under Section 17 of the Foreign Trade (Development and Regulation) Act, 1992 4 of

on resting the so-called error; I find this submission misconceived on merits. The quantification of the penalty is of a sum of Rs.1.5 Crores (approx). The officer states that this is equivalent to CIF value of Rs.........../- (blank in the order). This sought to be highlighted by the petitioner.

6. However, Section 11(2) of the Act in terms of which this penalty has been imposed, prescribes a range between Rs.10,000/- to five times the value of the goods. The CIF value in this case is Rs.85,65,953/- and hence, going by the book, the office could have imposed penalty of five times of the aforesaid sum. He has however, restricted himself to less than twice the value of the goods. There is thus no apparent rectifiable error.

7. In the result, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. 13..02..2023 Index : yes / no : yes kmk 5 of

To 1.Joint Director General of Foreign Trade, (Enforcement cum Adjudication) Government of India, Ministry of Commerce & Industry, Office of the Zonal Joint Director General of Foreign Trade, Shastri Bhavan Annexe-26, Haddows Road, Chennai 600 006.

3.The District Collector of Chennai, No.62, Rajaji Salai, Chennai 60001.

4.The Tahsildar, Egmore-Nungambakkam Taluk, Chetpet, Chennai 600031.

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DR. ANITA SUMANTH.J., kmk W.P.No. 13896 of 2017 13..02..2023 7 of