S. Muralidhar, J. - (1.) THE challenge in this writ petition under Article 226 of the Constitution is to a show cause notice dated 4th December 2003 issued by the Commissioner, requiring the Petitioners to appear before the Adjudicating Officer/ Commissioner for a hearing on 17th December 2003 pursuant to a Memorandum issued by the Deputy Director, Directorate of Enforcement ('DoE') on 28th February 2002 asking the Petitioners to show cause why they should not be proceeded against for contravention of the provisions of Section 18(2) of the Foreign Exchange Regulation Act, 1973 ('FERA').
(2.) THE factual background is that during the years 1992 -93, the Petitioner No. 1 Company effected shipment of goods valued at US $ 94814.20 under the cover of GR forms to a party at Binapole in Bangladesh. The consignment was of cotton yarn dyed cloth which was to be dispatched to M/s Azim Garments Ltd. ('AGL') at Dhaka. The consignment was booked for carriage by M/s Transport Corporation of India Ltd. ('TCIL'). It is stated that TCIL undertook, under the contract of carriage, to deliver the goods to AGL under the order of Islami Bank Bangladesh, Dhaka. As regards the condition of delivery, it was specifically notified by the carrier TCIL that the consignment covered by the lorry receipt form shall be stored at the destination under the control of TCIL and shall be delivered by the order of the consignee bank, whose name was mentioned in the lorry receipt. The relevant documents in regard to the goods sent to AGL through TCIL were negotiated by the Petitioner No. 1 through the American Express Bank, New Delhi. It is stated that for a long time thereafter Petitioner No. 1 did not receive any payment or receive any advice about the retirement of the documents by the consignee. Petitioner No. 1 accordingly made enquiries from TCL and the banks but could not trace the whereabouts of the goods. Consequently Petitioner No. 1 requested the bank to return the documents so that the goods could be called back from TCIL. The bankers of the Petitioner No. 1 i.e., the American Express Bank by their letter dated 9th March 2003 requested the Islami Bank Bangladesh that the unpaid documents be returned as the acceptance and payment for the goods were not forthcoming.
(3.) EFFORTS were made by the American Express Bank again by writing on 8th May 1993 to the Bangladesh Bank to arrange for the payment through the Islami Bank Bangladesh. Ultimately the Islami Bank, Bangladesh returned all the documents to the American Express Bank by their letter dated 16th June 1993. After having received the documents from the American Express Bank on 12th July 1993 the Petitioner No. 1 served a legal notice on TCIL informing it that the goods were not delivered by TCIL as per the terms and conditions of the contract. Since the export was not complete on account of the non -delivery of the goods by TCIL, no payment of foreign exchange was received by the Petitioner No. 1 for the goods meant for export. In reply to the legal notice dated 12th July 1993, TCIL by its letter dated 22nd July 1993 asked the Petitioner No. 1 to surrender the original consignee copy along with the invoice and further instructed to pay one side freight enabling TCIL to rebook the goods covered under the five consignments to be delivered in India.;