- (1.) In the writ petition the petitioner has challenged the order of suspension dated 7th December, 2010 passed under sub-section (4) of Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 (for short the "Act") by the Joint Director of Foreign Trade, the respondent no.3, suspending the Importer Exporter Code ("Code" for short) of the petitioner.
(2.) The facts which are relevant for the purpose of adjudication are that by an order dated 22nd November, 2006 the Deputy Director General of Foreign Trade, the respondent no. 4, after issuing show-cause notice to which the petitioner had replied and was not found to be satisfactory, and after giving an opportunity of personal hearing, to which the petitioner did not respond, had passed an order under section 9 (4) and section 11 (2) of the Act and under Rule 10(b) of the Foreign Trade (Regulation) Rules, cancelling the licence of the petitioner and directing payment of customs duty and interest and imposing fiscal penalty of Rs. 20,28,454/- besides imposing fiscal penalty of Rs. 1,00,000/- on each Director of the firm for non-fulfillment of export obligation and for payment of other amounts. Though appeal could have been preferred under section 15 of the Act, the petitioner no.1 chose not to avail itself of the said forum. Rather it filed a representation dated 19th December, 2006 requesting the respondent no.4 to waive penalty and interest imposed by the order dated 22nd November, 2006. According to the petitioner, however ignoring the representations, the order dated 7th December, 2010 suspending the Code was passed by the respondent no.3. Aggrieved, this writ petition has been filed.
(3.) Mr. Ranjan Deb, learned Senior Advocate for the petitioner, relying on the statements in the writ petition had submitted that "Adjudicating Authority", under section 13 of the Act, is the officer who had imposed the order of penalty. Since the respondent no.4 had issued the order imposing penalty and as the impugned order of suspension of Code under section 11(4) for non-payment of penalty suspension is to be carried out by "the Adjudicating Authority", as the order of suspension was issued by the respondent no.3 and not by the respondent no.4, it is contrary to Section 11(4) of the Act and the same is without jurisdiction and thus a nullity. Further, as the representation dated 19th December, 2006 for waiver of penalty and interest was pending before the respondent no.4 and as the impugned order of suspension of Code has civil consequences, before suspension of Code, an opportunity of hearing should have been granted. Moreover as suspension of Code for non-payment of penalty was is in the nature of execution proceedings and while executing a decree a person is entitled to be heard, before suspension, the petitioner was entitled to be heard. Referring to the Scheme for revival of the company pending before the Board for Industrial and Financial Reconstruction ( Board for short), a copy of which is on record, submission was since it is pending, under section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 ( SICA for short), suspension of Code without the consent of the Board was illegal.;