Rajes Kumar, J. - (1.) BY means of the present writ petition under Article 226 of the Constitution of India the petitioner has prayed for quashing of the order dated 27 -9 -2006 passed by the Director General of Foreign Trade rejecting the appeal of the petitioner for non -submission of pre -deposit of penalty and non -fulfillment of export obligation. The brief facts of the case are that the petitioner was granted an import license No. P/L/0047517, dated 27 -11 -1998 for import of 243 Metric Ton of Brass Scrap for CIF valuing Rs. 1 crore with a condition that they would export 226 Metric Ton of Brass Art -wares for FOB valuing Rs. 1,33,00,000/ - within eighteen months from the date of issue of said license. In pursuance of the export license, petitioner had exported the goods valuing Rs. 1,58,05,865/ -, but could not fulfill the export obligation within the prescribed period. On account of non -fulfillment of export obligation, petitioner was served a show cause notice dated 22 -2 -2002 requiring to show cause as to why action may not be taken against him for non -fulfillment of the export obligation. It appears that no reply was given by the petitioner to the show cause, therefore, the Joint Director General of Foreign Trade, Moradabad passed an order dated 1 -5 -2002 and for non -fulfillment of export obligation within the prescribed period, a sum of Rs. 1 crore was levied towards the penalty. Being aggrieved by the said order, petitioner filed an appeal before the Addl. Director General of Foreign Trade, New Delhi under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992 along with an application for stay and waiver for pre -deposit of the penalty amount. The Additional Director General of Foreign Trade vide impugned order dated 27 -9 -2006 rejected the appeal for non -submission of pre -deposit of the penalty amount and non -fulfillment of the export obligation.
(2.) HEARD Counsel for the parties. With the consent of both the parties, the present petition is being disposed of at the admission stage. Learned Counsel for the petitioner submitted that the appeal has been rejected for non -deposit of penalty levied by the adjudicating authority which was a condition precedent for maintainability of the appeal. He submitted that the Appellate Authority has power under Section 15 of the Act to waive the condition of pre -deposit and to invoke the said power, an application was filed by the petitioner along with the Memorandum of Appeal, but without passing any order on the said application and exercising such power, appeal was dismissed for want of non -deposit of the penalty amount. Learned Standing Counsel submitted that it is true that no order was passed on the application seeking waiver of pre -deposit of the amount, but the petitioner was given several opportunity for consideration of issue of pre -deposit of the penalty amount, but the petitioner could not avail such opportunity, therefore, Appellate Authority proceeded to reject the appeal for want of non -deposit of penalty amount.
(3.) HAVING heard learned Counsel for the parties and perused the impugned order.;