ORDER
D.V. Shylendra Kumar, J.
1. This writ petition is yet again an instance of abuse of the writ jurisdiction of this court by persons who want to espouse other’s causes and not necessarily their own cause.
2. Writ petitioner, an individual has sought for quashing of the order dated 9.2.2007 [copy at Annexure-A], an order passed by the appellate authority under the provisions of Section 15 of the Foreign Trade [Development & Regulation] Act, 1992, [for short the Act] where under the appellate authority has dismissed the appeal.
3. Writ petitioner who figured as appellant in that appeal has preferred this writ petition. The appeal was against an order dated 30.7.2004 [copy at Annexure-E] passed by the Joint Director General of Foreign Trade, imposing penalty of Rs. 14,30,000/- upon M/s. Magosan Exports [P] Ltd., on the premise that this company which had availed of the import licence for importing Heidelbers Cord Offset Printing Machines availing concessional customs duty and which licence had been issued subject to the condition that the licencee should export printed duplex board boxes and earn foreign exchange equivalent to US $ 1,74,860 with an annual average of US $ 71,020 within a period of five years from the date of issue of licence, had failed to fulfil the export obligation within the permitted time i.e., by 30.1.2002.
4. The follow up action had been taken against the importer by issue of a show cause notice both on the revenue side for realising the duty with interest etc., and also for taking punitive action against the importer for non-compliance of import licence and for mis-utilizing the same. Inspite of notices being issued to the company, there was no response and in the absence of any reply or explanation, the Joint Director General of Foreign Trade proceeded to levy penalty of Rs. 14,30,000/- on the importer i.e., M/s. Magosan Exports (PJ Ltd., under the provisions of Section 11(2) of the Act read with Notification No. 18/9/97/ECA-III dt.20.1.1999.
5. The Joint Director General of Foreign Trade ordered, purporting to exercise powers under Section 8(1) of the Act to debar the importer and its Director from obtaining any kind of licence, customs clearance permits or obtaining allotment of imported goods from any licencing authorities or any other agency till the penalty amount was paid and kept under suspension the import export code number which had been allotted to the importer till the realisation of the penalty amount
6. It is this order passed by the Joint Director General of Foreign Trade that had been made subject matter of appeal before the Additional Director General of Foreign Trade acting as an appellate authority.
7. The appeal being under Section 15 of the Act which reads as under:
15. Appeal – [1] Any person aggrieved by any decision or order made by the adjudicating authority under this Act may prefer an appeal-
[a] where the decision or order has been made by the Director General to the Central Government
[b] where the decision or order has been made by an officer subordinate to the Director General, to the Director General or to any officer superior to the Adjudicating Authority authorised by the Director General to hear the appeal,
within a period of forty-five days from the date on which the decision or order is served on such person:
Provided that the Appellate Authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the aforesaid period, allow such appeal to be preferred within a further period of thirty days;
Provided further that in the case of an appeal against a decision or order imposing a penalty or redemption charges, no such appeal shall be entertained unless the amount of the penalty or redemption charges has been deposited by the appellant:
Provided also that, where the Appellate Authority is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, at it discretion, dispense with such deposit either unconditionally or subject to such conditions as it may impose,
[2] The appellate authority may, after giving to the appellant a reasonable opportunity of being heard, if he so desires, and after making such further inquiries, if any, as it may consider necessary, make such orders as it thinks fit, confirming, modifying or reversing the decision or order appealed against, or may send back the case with such directions, as it may think fit, for a flesh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
Provided that an order enhancing or imposing a penalty or redemption charges or confiscating goods of a greater value shall not be made under this section unless the appellant has been given an opportunity of making a representation, and, if he so desires, of being heard in his defence.
stipulates twin compliances for maintainability of the appeal, one is that the appeal which should be normally within a period of 45 days from the date of receipt of copy of the order appealed against is allowed to be preferred within an extended time of further 30 days upto which date the appellate authority may condone the delay on being satisfied and not otherwise and also that the order appealed against if is one imposing any penalty, the amount should have been deposited by the appellant with the discretion given to the appellate authority to dispense with any part of such deposit if the appellate authority is satisfied that insisting on the deposit of the entire amount would cause undue hardship to the appellant.
8. The appellate authority which had an occasion to examine such an appeal, in terms of the order dated 9.2.2007 has dismissed the appeal after hearing the representative of the appellant and being of the view that the appellant had not explained the reasons for the gross delay in any convincing manner and the appellate authority also having examined the developments leading to the imposition of penalty by the Joint Director General of Foreign Trade and being satisfied that the conduct of the importer did justify the levy of penalty etc.,
9. The appellate authority also noticed that the conduct of the appellant was not even bonafide as the appeal had been preferred only after initiation of certain recovery proceedings etc.,
10. Appearing for the petitioner, submission of Sri. Krishnamoorthy, learned Counsel is that the order dated 9.2.2007 is not tenable on the face of it; that the appellate authority purporting to pass an interim order has actually dismissed the appeal itself, that the appeal of this nature could not have been dismissed by way of an interim order and therefore the order suffers from patent illegality.
11. It is also submitted that the petitioner was constrained to file an appeal for the reason that for realization of the penalty imposed on the importer, namely, M/s. Magosan Exports [P] Ltd., the properties of the writ petitioner was being attached and therefore it became necessary for the writ petitioner to file an appeal to get over the order levying penalty and the appellate authority having not bestowed any attention to this aspect, the order is liable to be set aside.
12. Learned Counsel for the petitioner also submits that irrespective of the merits of the order, for realisation of penalty levied on some other company, if the properties of the petitioner is attached or sought to be sold, such action can be questioned by the writ petitioner independent of any other order passed and therefore the petitioner’s interest should be protected in this writ petition by quashing the impugned order.
13. Notices had been issued to the respondents. Respondents have entered appearance through their standing counsel and have also filed statement of objections.
14. It is pointed out, inter alia, in the statement of objections that the appellate authority could not have entertained the appeal of this nature, being in any view of the matter beyond the time permitted under Section 15 of the Act itself; that the memorandum of appeal was not accompanied by deposit of the penalty levied under the impugned order.
15. Sri. Mohan, learned Counsel for the respondents also points out that the petitioner was a partner of the firm called Manorama Offsets, Mangalore, which had imported the machinery availing concessional rate of duty and for such purpose had floated a company by name and style of ‘M/s. Magosan Exports [P] Ltd.’ with his brother and after obtaining licence from the respondent No. 1 and after importing the machinery, it was installed in Manorama Offsets, Mangalore, where the petitioner was a partner and after availing of the benefit of the imported machinery, cannot now seek to disown the liability for not fulfilling the export obligation etc., and in fact the conduct also belies any bonafide on the part of the petitioner as the petitioner had conveniently resigned from the importer company and this clearly reveals the fraud played by the petitioner and the dishonest trick employed by the petitioner to escape consequences in law etc.,
16. Be that as it may, the penalty imposed is on the importer which had been issued with licence, namely, M/s. Magosan Exports [P] Ltd.,. The company itself did not prefer any appeal and if at all if the petitioner was part of the company or the Director of the company, consequence under the order imposing penalty in so far as the petitioner is concerned is one of disabling the petitioner in his personal capacity from obtaining or utilizing any licence. Penalty amount being not against the petitioner in his personal capacity, the petitioner cannot be said to be aggrieved at all by the imposition of the penalty on the company and he cannot maintain an appeal for the benefit of the company when the penalty is not on the petitioner in his personal capacity and more so when the statutory requirements of Section 15 of the Act itself had not been complied i.e., the appeal being preferred beyond the time permitted under Section 15 of the Act and not accompanied by the deposit.
17. Though Sri. Krishnamoorthy, learned Counsel for the petitioner would submit that an application had been made for dispensation of the pre-deposit and that has not been considered and that is a lacuna in the order, I find that this submission is not one with any bonafides on the part of the petitioner. In the first instance, the appeal preferred being beyond the permitted time under the statute, the appellate authority could not have entertained the appeal and the appeal can only be dismissed, whether with bonafides or without bonafides or appellant had any justification for the delay etc.,
18. Therefore, the final order dismissing the appeal is one which cannot be in any way interfered with or modified in the exercise of writ jurisdiction, but what is more important is that the writ petitioner sought to get over the order of penalty which was on the company only in the appeal filed by him in his individual capacity and the company itself not making any effort in this regard, the petitioner on the other hand is now crying hoarse that the properties of the petitioner is sought to be attached for realization of the penalty amount and therefore the order is bad etc.,
19. However, Sri. Krishnamoorthy, learned Counsel for the petitioner submits that the petitioner has filed a separate writ petition in WP No. 25003 of 2005 questioning the legality of attachment order pursuant to the proclamation order issued against the petitioner and that writ petition is still pending consideration.
20. It is not necessary to go into the contentions urged in that writ petition, but in so far as the present writ petition is concerned, I find that there is absolutely no scope for interference in the matter, particularly, the order passed by the appellate authority dismissing the appeal is the inevitable order that has to be passed in terms of Section 15 of the Act.
It is found that the petition is not one with bonafides, particularly, as if as submitted by Sri. Krishnamoorthy, learned Counsel for the petitioner, the petitioner has preferred any independent writ petition questioning the legality of the action attaching the property of the petitioner, the only reason for which this writ petition is filed is for getting over the order of penalty which is not on the petitioner, but on the company, the present writ petition and the purpose of the petitioner is to avoid the order of penalty or to get over the order of penalty imposed on the company though it is not on the petitioner in his personal capacity.
21. Writ petition is obviously misuse or abuse of the process of this court and not for any bonafide purpose for the petitioner himself.
22. Therefore, this writ petition is dismissed levying cost of Rs. 5,000/- on the petitioner payable in favour of the respondent No. 1 to be credited to the account of Government of India and can be realized as arrears of revenue to the State unless the amount is paid or deposited before the respondent No. 1 within a period of eight weeks from today.