Hon'ble Rajes Kumar, J.
(Delivered by Hon'ble Rajes Kumar, J.) By means of the present writ petition the petitioner seeks the following reliefs :
"i) a writ, order or direction in the nature of certiorari quashing the auction notice dated 9th November, 2004 contained in Annexure No. 11 to the writ petition.
ii)a writ, order or direction in the nature of mandamus directing the opposite party no. 3 to release the original shipping bills (photocopies whereof are Annexure Nos. 3A to 3J to the writ petition) or their duly attested copies for submission of the same by the petitiner to the Assistant Collector, Customs, Air Cargo, New Delhi.
iii)a writ, order or direction in the nature of mandamus commanding the Assistant Collector, Customs, Air Cargo, Indira Gandhi International Airport, New Delhi to release the DEEC books Nos. 007790, 007791 submitted by the petitioner after making endorsement thereon for import and export made by the petitioner's firm, M/s. Salma Arts, for submission of the same before the Joint Director General of Foreign Trade, Kanpur.
iv)a writ, order or direction in the nature of mandamus commanding the Joint Director General of Foreign Trade, Kanpur to decide the appeal filed by the petitioner contained in Annexure No. 8 to the writ petition within the time to be allowed by the Hon'ble Court.
v)such other writ, order or direction as the Hon'ble Court may deem fit and proper on the facts and circumstances of the matter.
vi)award the cost of the petition to the petitioner."
The brief facts of the case are that the petitioner was a partner of a partnership firm named as "M/s. Salma Arts". In the said partnership firm the petitioner was the partner along with his brother Mohd. Saleem Khan.
The partnership firm was carrying on the business of export of hand embroidered fabrics. The partnership firm was issued an advance import licence No. P/K/3045102 dated 12.9.1984 for a sum of Rs. 3,59,000/- for the import of 18,180 mtr. of 100% pure Silk Georgette of 44 inch subject to the conditions attached to the said licence.
Under the condition of the licence the partnership firm had to carry on the embroidery work and thereafter export the same within the stipulated period. The stipulated period was six months from the date of clearance of the first consignment in India. The validity of the licence was 18 months from 12.9.1984. However, it was extended by letter dated 22.6.1990 upto the period of 16.5.1988. For the advance licence the firm had provided a bank guarantee of Rs. 1,87,596/- to the Joint Chief Controller of Import & Export (now known as Joint Director General of Foreign Trade), Kanpur.
Under the aforesaid advance licence the petitioner imported 6500 mtrs. of Silk Georgette of the import value of Rs. 1,43,036/-. Further, the firm has imported 9982 mtrs. of Silk Georgette for the import value of Rs. 2,16,848/-. In this way, as against the advance import licence of 18,180 mtrs. the firm imported only 16482 mtrs. of silk Georgette against the import value of Rs. 3,59,000/-.
The petitioner claimed that as against the import material of 16,482 mtrs. the firm exported 16,320.50 mtrs. of the material of the export value of Rs. 11,82,749.25 P. It is contended that the firm forwarded Duty Exemption Entitlement Service Books (called the 'DEEC Books' for short) to the Assistant Collector of Customs (Air Cargo), Indira Gandhi International Airport, New Delhi, for making entries in the import and export book. The said DEEC Books were sent by the firm vide its letter No. COR/LCC/AM 90/0304 dated 25.7.1990. It is contended that for the claim of export incentive, the original shipping bills for the export were submitted in the office of the Joint Director General of Foreign Trade, Kanpur.
The Deputy Director General of Foreign Trade, Kanpur, vide order dated 28.7.1993 declared the firm "M/s. Salma Arts" as defaulter for the alleged non-fulfilment of the export obligations and required the firm to pay the customs duty in respect of the material imported against advance licence dated 12.9.1984 with 18% interest thereon within a period of 15 days from the date of issuance of the said order. In the said order it was provided that in case if the firm is not satisfied, they may prefer appeal as provided in para 238 of Handbooks of Import-Export Procedure for 1992-97.
The petitioner was served with the auction notice dated 9.11.2004 for the auction of the agricultural property of the petitioner bearing Khasra No. 359 measuring 8.254 hectare (32 acres) situate at Sarai Prem Raj, Pargana, Tehsil and District Lucknow. The auction notice has been issued for the realisation of outstanding dues of Rs. 17 lakhs against the firm M/s. Salma Arts.
Being aggrieved by the said auction notice the present petition has been filed. The petition has been entertained and interim order has been passed and the respondents have been directed to file counter affidavit.
Heard Sri N.K. Seth, Senior Advocate, assisted by Sri A.K. Goel, learned counsel for the petitioner, and the Standing Counsel.
Learned counsel for the petitioner submitted that the auction notice has been sent at the behest of the U.P. Export Corporation, Kanpur, which is apparent from the auction notice, while the petitioner has nothing to do with the U.P. Export Corporation, Kanpur. The entire shipping bills have been submitted for endorsement with the Joint Director General of Foreign Trade, Kanpur, but, despite repeated requests, the same have not been returned back in original or its duly attested copies and, therefore, the same could not be submitted before the Assistant Collector of Customs (Air Cargo), New Delhi. Despite repeated requests the Assistant Collector of Customs (Air Cargo), Indira Gandhi International Airport, New Delhi, has not released the DEEC Books Nos. 007790 and 007791 after making endorsement for the submission of the same before the Joint Director General of Foreign Trade, Kanpur, and, therefore, the same could not be submitted. He requested that necessary direction be issued to respondent no. 3 for the release of original shipping bills and to the Assistant Collector of Customs (Air Cargo), New Delhi, respondent no. 4, to release the DEEC Books. Against the order of the Deputy Director General of Foreign Trade, Kanpur, dated 28.7.1993 the petitiner has filed appeal on 30.8.1993 before the Joint Director General of Foreign Trade, Kanpur, but till date no information about the appeal has been received, inasmuch as the appeal has not yet been decided. He submitted that by order dated 20.5.2000, which is Annexure '12' to the writ petition, a sum of Rs. 17 lakhs has been levied towards penalty under Section 4-I(i)(a) of the Import and Export (Control) Act, 1947 without giving any opportunity in violation of the principle of natural justice. The auction notice is patently illegal.
Counsel for the respondents submitted that in the counter affidavit it has been stated that inadvertently in the auction notice U.P. Export Corporation, Kanpur, is mentioned, while, the notice has been issued on the information of respondent no. 3 for the realisation of outstanding dues of Rs. 17 lakhs against the partnership firm, M/s. Salma Arts, towards the penalty levied under Section 4-I(i)(a) of the Import and Export (Control) Act, 1947. The penalty has been levied on the ground that M/s. Salma Arts has not adduced any evidence to establish that the goods have been exported in compliance of the terms of the import licence. The penalty order is Annexure '12' to the writ petition. It is not the case of the petitioner that any appeal has been filed against the penalty order. This penalty order has also not been challenged in this writ petition. The case of the petitioner is that an appeal has been filed against the order dated 28.7.1993 by which the petitioner had been declared defaulter, which is also found to be incorrect. In the counter affidavit the filing of any appeal has been categorically denied. The appeal is not on record. No evidence has been adduced to establish the filing of the appeal. He further submitted that since 1993 after getting interim order in the present writ petition, the petitioner has slept over in the matter. No effort has been made for disposal of the appeal. It is not the case of the petitioner that any stay application was moved along with the memorandum of appeal. He submitted that at this stage in the present proceeding the petitioner cannot claim any relief of mandamus from respondent no. 3 or Assistant Collector of Customs (Air Cargo), Indira Gandhi International Airport, New Delhi, for the release of original shipping bills and DEEC Books respectively, inasmuch as the petitioner failed to pursue his remedy by way of appeal.
We have heard the rival submissions of both sides and perused the record. The respondents have categorically denied the filing of any appeal on 30.8.1993 against the order dated 28.7.1993. No acknowledgement receipt has been enclosed to establish the filing of the appeal. It is a disputed question of fact whether the petitioner has filed any appeal or not and the same cannot be adjudicated the issue in the writ jurisdiction.
The impugned auction notice dated 9.11.2004 reveals that the notice has been issued for the recovery of outstanding dues of Rs. 17 lakhs against the partnership firm, M/s. Salma Arts, in which the petitioner was one of the partners. It is true that in the notice it is mentioned that it has been issued on the information of U.P. Export Corporation Ltd. but in the counter affidavit it has been categorically stated that in the notice, by the Civil Authorities, U.P. Export Corporation Ltd. has been wrongly mentioned instead of the Regional Office, Kanpur, of the Joint Director General of Foreign Trade, Kakadeo, Kanpur, respondent no. 3. We are of the view that on the ground of wrong mention of the name of U.P. Export Corporation, Kanpur, in the auction notice, the auction notice cannot become invalid when undoubtedly there was/is outstanding dues against the firm.
The impugned auction notice has been issued for the realisation of outstanding dues of Rs. 17 lakhs against M/s. Salma Arts in which the petitioner was one of the partners. The amount of Rs. 17 lakhs is specifically mentioned in the notice. Against the partnership firm, M/s. Salma Arts, by the order dated 20.5.2000, which is Annexure '12' to the writ petition, a sum of Rs. 17 lakhs has been levied towards penalty under Section 4-I(i)(a) of the Import and Export (Control) Act, 1947. The penalty has been levied on the ground that M/s. Salma Arts has not adduced any evidence to establish that the goods have been exported in compliance of the terms of the import licence. It is not the case of the petitioner that any appeal against the said order has been filed under the said Act. The said penalty order has also not been challenged in the writ petition. It is also not the case of the petitioner that the said penalty order has been set aside by any competent authority. In the circumstances, there was/is outstanding dues against the partnership firm.
The petitioner is one of the partners of the firm. Being a partner the petitioner is jointly and severaly liable for the dues of the firm and, therefore, the petitioner is liable for the dues of the firm unless the demand against the firm stand set aside by any competent court. In the circumstances, we decline to quash the auction notice. It would be open to the authority concerned to proceed for realisation of the demand in accordance with the law.
So far as reliefs no. 2 and 3 are concerned, we are of the view that the claim of the petitioner can more appropriately be considered by respondents no. 3 and 6. In the circumstances, in case if the petitioner moves any application before respondent no. 3 for release of the original shipping bills and before respondent no. 6 for release of the DEEC Books No. 007790 and 007791, the respondents no. 3 and 6 are directed to dispose of the applications expeditiously preferably within a period of two months from the date of presentation of such application in accordance to law.
With the aforesaid observations, the writ petition stands disposed off. There shall be no order as to cost.
Dated : 26.10.2010.
PG.