SIDDHARTH POLYMERS Vs. UOI

JUDGEMENT

(1.) PRESENT Letters Patent Appeal has been filed by the appellant challenging the order dated 03rd March, 2009 whereby appellant's writ petition for waiver of pre-deposit has been dismissed. Learned Single Judge has held that the appellant has failed to make out a strong prima facie case to enable him to seek relief under Article 226 of the constitution.

(2.) BRIEFLY stated the material facts of this case are that appellant was issued a show cause notice dated 16th October, 2001 under Sections 8 (3) and 8 (4) of Foreign exchange regulation Act, 1973 (hereinafter referred to as "fera, 1973" ). In the show cause notice, it was stated that though the appellant had in 1998-1999 imported marble slabs/blocks from M/s. Arfound Trading Establishment, Dubai, Vital pharmaceuticals, london, D. Martino, Silvestro, Italy etc. at a declared value of US$ 3,49,220. 80, the custom department on examination of the said imports had loaded the value of the said marbles at the rate of US$ 300 per metric tonne as the said marbles were restricted items under the Exim Policy. Thus, according to the show cause notice, the enhanced value of the said consignment for the purpose of import duty was US$ 4,74,219. 40 and accordingly the appellant's firm had not used the foreign exchange for the purpose for which it had been granted to it without any previous, general or special permission of the rbi. The Special Director, Enforcement at Mumbai passed an ex parte order dated 29th january, 2002 wherein he held as under: "from the above, it would be clear that the imports of marble made by the noticee firm M/s. Siddharth Polymers was not covered by any proper import licence as the said marbles were restricted items under Exim Policy prevailing at the relevant time. Secondly, it is seen that the noticee firm has not produced any valid import licence before the Customs. Thus, it is apparent that the imports of marbles were totally illegal without any import licence. Once this aspect is proved, it is equally proved that the noticee firm has not utilized the foreign exchange for the specific purpose it was granted. Thus, the charges for the contravention of Sec. 8 (3) r/w 8 (4) ibid against the noticee Sh. Nimesh Suchde, Prop. of M/s. Siddharth Polymers are proves beyond a reasonable doubt, as he has failed to produce the requisite permission of the RBI in the matter. I therefore, hold him guilty for the aforesaid contravention. Now in exercise of powers conferred on me u/s 50 ibid, I impose a penalty of Rs. 20,00,000/- (Rupees Twenty lakhs only) on Sh. Nimesh Suchde, Prop. of M/s. Siddharth Polymers for the aforesaid contravention"

(3.) THE Appellate Tribunal for Foreign Exchange dismissed the appellant's application for dispensation of pre-deposit of penalty and further observed that if the penalty amount was not deposited within 30 days, the appellant's appeal before the appellate Tribunal would also stand dismissed. It is pertinent to mention that the appellate Tribunal based its conclusion on the ground that the goods imported were allegedly of higher value and, therefore, it was automatic that the kind and quality of imported goods were different.