Alogoma Steels Limited (Formerly Known As Govinda Impex Pvt. Ltd.) & Anr. vs Joint Director General Of Foreign Trade & Ors.

An order in original dated January 29, 2018 is assailed by the petitioners under Article 226 of the Constitution. Learned advocate for the petitioners

submits that, although the impugned order is appealable, the petitioners seek to maintain the writ petition on the ground of breach of principles of

natural justice. He submits that, three show-cause notices were issued to the petitioners. The impugned order does not refer to any of the three show-

cause notices. The impugned order refers to a show cause notice dated July 7, 2014 which the petitioners did not receive. The question of hearing the

petitioners on such show-cause notice, which was not received by the petitioners, does not arise.

The impugned order, therefore, stand vitiated on the ground of breach of principles of natural justice. That apart, according to the petitioners, the three

impugned show-cause notices refer to invocation of provisions of Rule 7(1)(k) of the Foreign Trade (Regulation) Rules, 1993. Such Rule does not

empower the authority to impose fiscal penalty. The impugned order is, therefore, beyond the scope and ambit of the show-cause notices. This is

another ground of breach of principles of natural justice. He submits that, the impugned show-cause notice should be set aside on such scores.

Learned advocate appearing for the department submits that, the impugned order does not suffer from the vice of breach of principles of natural

justice. She draws the attention of the Court to the three show-cause notices. She submits that, the body of the show-causes states that, provisions of

Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 have been invoked for the purpose of imposition of fiscal penalty. The same

has since been done in the impugned order. Therefore, the show-cause notices are not beyond the scope and ambit of the powers of the issuing

authority.

She refers to the replies given by the petitioners and submits that, the petitioners were aware of all the three show-cause notices. In none of the two

replies given by the petitioners, did the petitioners ask for personal hearing. Although the three show-cause notices categorically state that, in the

event, the petitioners wish to obtain personal hearing, the petitioners must request for the same. She refers to the impugned order and submits that, the

impugned order can at best be said to be contain a typographical error with regard to the date of the show-cause referred to in it. Inadvertently, the

showcause has been referred to as July 7, 2014 when it should be read at July 1, 2014. The petitioners had admittedly received the show-cause notice

dated July 1, 2014.

I have considered the rival contentions of the parties and the materials made available on record. Three show-cause notices were issued to the

petitioners are dated February 10, 2014, July 1, 2014 and October 13, 2015. The three show-cause notices refer to Section 11 of the Foreign Trade

(Development and Regulation) Act, 1992 in their body. The charges levelled against the petitioners are also stated. The petitioners are also offered an

opportunity of hearing in such notice provided that the petitioners comply with the requisitions specified therein.

There are two replies by the petitioners, one dated August 13, 2014 and other dated October 19, 2015 to the show-cause notices. In both the replies,

the petitioners plead financial inability to meet the demands of the authorities. Neither by the two replies nor by any other document did the petitioners

ask for any personal hearing. Quoting of a wrong provision of a statute, without the noticee establishing any prejudice being caused thereby, on its own

will not vitiate the proceeding or the order.

In the present case, the show-cause notices stated that, the provisions of Section 11 of the Act of 1992 have been invoked in the fact scenario as

stated therein. The fact scenario is not disputed in the two replies. As noted above, financial inability is pleaded. There is nothing on the merits denying

liability in the replies. The authorities thereafter considered such replies and found against the petitioners on merits and had imposed the fiscal penalty

invoking the provisions of Section 11 of the Act of 1992.

Such an action of the authorities cannot be termed to be perverse or without jurisdiction so as to invite inference by the Writ Court. There is no breach

of principles of natural justice in the process, as the petitioners did receive the three show-cause notices and had submitted two replies thereto without

asking for any personal hearing. True, the order in original contains a reference to a show-cause notice dated July 7, 2014. However, as clarified on

behalf of the respondents, the same is to be read as the show-cause of July 1, 2014.

In such circumstances, I am not minded to interfere in the present writ petition. W.P. No.4511 (W) of 2018 is dismissed. There shall be no order as to

costs. Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.