Foreign Trade (Development and Regulation) Act, 1992

(1) This Act may be called the Foreign Trade (Development and Regulation) Act 1992. (2) Sections 11 to 14 shall come into force at once and the remaining provisions of this Act shall be deemed to have come into fore on the 19th day of June, 1992.

In this Act, unless the context otherwise requires, -- (a) "Adjudicating Authority" means the authority specified in, or under, state sub section (1) of section 15; (b) "Appellate Authority" means the authority specified in, or under, state sub section (1) of section 15; (c) "Conveyance" means any vehicle, vessel, aircraft of any other means of transport including any animal: (d) "Director General" means the Director General of Foreign Trade appointed under section 6; (e) "Import" and "export" means respectively bringing into, or taking out of, India any goods by land , sea or air; (f) "Importer- exporter Code Number" means the Code Number granted under section 7; (g) "License" means a license to import or export and includes a customs clearance permit and any other permission issued or granted under this Act: (h) "Order" means any Order made by the Central Government under section 3: and (i) "Prescribed’ means prescribed by rules made under this Act.

exports.— (1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting , restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any , as may be made by or under the Order, the import or export of goods. (3) All goods to which any Order under sub section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. Comment : “5. It would, therefore, be clear that grant of license depends upon the policy prevailing as on the date of the grant of the license.  The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy.  A prior decision would not bind the Government for all times to come.  When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy.  The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same.  Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilization of its finances in the public interest.”: P. T. R. Exports (Madras) Pvt. Ltd. v. Union of India, AIR 1996 SUPREME COURT 3461

No person shall make any import or export except under an Importer exporter Code Number granted by the Director General or the officer authorized by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General.

Number.— (1) Where – (a) Any person has contravened any law relating to Central excise or customs or foreign exchange or has committed any other economic offence under any other law for the time being in force as may be specified by the Central Government by notification in the Official Gazette, or (b) The Director General has reason to believe that any person has made an export or import in a manner gravely prejudicial to the trade relations of India with any foreign country or to the interests of other person engaged in imports or exports or has brought disrepute to the credit or the goods of the country, the Director General may call for the record or any other information from that person and may, after giving to that person a notice in writing informing him of the grounds on which it is proposed to suspend or cancel the Importer exporter Code Number and giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice and, if that person so desires, of being heard, suspend for a period, as may be specified in the order, or cancel the Importer exporter Code Number granted to that person. (2) Where any Importer exporter Code Number granted to a person has been suspended or cancelled under sub section (1), that person shall not be entitled to import or export any good except under a special license, granted, in such manner and subject to such conditions as may be prescribed, by the Director General to that person.

(1) The Central Government may levy fees, subject to such exceptions, in respect of such persons or class of persons making an application for license of in respect of any license granted or renewed in such manner as may be prescribed. (2) The Director General or an officer authorized by him may, on an application and after making such inquiry as he may think fit, grant or renew or refuse to grant or renew a license to import or export such class or classes of goods as may be prescribed, after recording in writing his reasons for such refusal. (3) A license granted or renewed under this section shall – (a) Be in such form as may be prescribed; (b) Be valid for such period as may be specified therein; and (c) Be subject to such terms , conditions and restrictions as may be prescribed or as specified in the license with reference to the terms, conditions and restrictions so prescribed. (4) The Director General or the officer authorized under sub section (2) may, subject to such conditions as may be prescribed, for good and sufficient reasons, to be recorded in writing, suspend or cancel any license granted under this Act: Provided that no such suspension or cancellation shall be made except after giving the holder of the license a reasonable opportunity of being heard. (5) AN appeal against an order refusing to grant, or renew or suspending or canceling, a license shall lie in like manner as an appeal against an order would lie under section 15.

(1) The Central Government may by notification in the Official Gazette, authorize any person for the purposes of exercising such powers with respect to entering such premises and searching , inspecting and seizing of such goods, documents, things and conveyances, subject to such requirements and conditions, as may be prescribed. (2) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974) relating to searches and seizures shall, so for as may be , apply to every search and seizure made under this section.

and export and import policy. – (1) No export or import shall be made by any person except in accordance with the provisions of this Act, the rules and orders made thereunder and the export and import policy for the time being in force. (2) Where any person makes or abets or attempts to make any export or import in contravention of any provision of this Act or any rules or orders made thereunder or the export and import policy, he hall be liable to a penalty not exceeding one thousand rupees of five time the value of the goods in respect of which any contravention is made or attempted to be made, whichever is more. (3) Where any person, on a notice to him by the Adjudicating Authority, admits any contravention, the Adjudication Authority may, in such class or classes of cases and in such manner as may be prescribed, determine , by way of settlement , an amount to be paid by that person. (4) A penalty imposed under this Act may, if it is not paid, be recovered as an arrears of land revenue and the Importer – exporter Code Number of the person concerned, may, on failure to pay the penalty by him, be suspended by the Adjudicating Authority till the penalty is paid. (5) Where any contravention of any provision of this Act or any rules or orders made thereunder or the export and import policy has been , is being, or is attempted to be, made, the goods together with any package, covering or receptacle and any conveyances shall, subject to such requirements and conditions as may be prescribed, be liable to confiscation by the Adjudicating Authority. (6) The goods or the conveyance confiscated under sub-section (5) may be released by the Adjudicating Authority, in such manner and subject to such conditions as may be prescribed, on payment by the person concerned of the redemption charges equivalent to the market value of the goods or conveyance, as the case may be.

punishment. — No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force.

Any penalty may be imposed or any confiscation may be adjudged under this Act by the Director General or, subject to such limits as may by specified , by such other officer as the Central Government may , by notification in the Official Gazette, authorize in this behalf.

No order imposing a penalty or of adjudication of confiscation shall be made unless the owner of the goods or conveyance, or other person concerned , has been given a notice in writing – (a) Informing him of the grounds on which it is proposed to impose a penalty or to confiscate such goods or conveyance; and (b) To make a representation in writing within such reasonable time as may be specified in the notice against the imposition of penalty or confiscation mentioned therein, and, if he so desires, of being heard in the matter.

(1) Any person aggrieved by any decision or order made by the Adjudication 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 authorized 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 its 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 fresh 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 defense. (3) The order made in appeal by the Appellate Authority shall be final..

The Central Government, in the case of any decision or order, not being a decision or order made in an appeal, made by the Director General, or the Director General in the case of any decision or order made by any officer subordinate to him, may on its or his own motion or otherwise, call for and examine the records of any proceeding in which a decision or an order imposing a penalty or redemption charges or adjudicating confiscation has been made and against which no appeal has been preferred, for the purpose of satisfying it self or himself, as the case may be, as to the correctness, legality or propriety of such decision or order and made such orders thereon as may be deemed fit: Provided that no decision or order shall be varied under this section so as to prejudicially affect any person unless such person — (a) Has, within a period of two years form the date of such decision or order, received a notice to show cause why such decision or order shall not be varied, and (b) Has been given a reasonable opportunity of making representation and, if he so desires, of being heard in his defense.

(1) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-- (a) Summoning and enforcing the attendance of witnesses; (b) Requiring the discovery and production of any document: (c) Requisitioning any public record or copy thereof from any court or office: (d) Receiving evidence on affidavits; and (e) Issuing commissions for the examination of witnesses or documents (2) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall have the power to make such orders of an interim nature as it may think fit and may also, for sufficient cause, order the stay of operation of any decision or order . (4) Clerical or arithmetical mistakes in any decision or order or errors arising therein from any accidental slip or omission may at any time be corrected by the authority by which the decision or order was made, either on its own motion or on the application of any of the parties: Provided that where any correction proposed to be made under this sub section will have the effect of prejudicially affecting any person, no such correction shall be made except after giving to that person a reasonable opportunity of making a representation in the matter and no such correction shall be made after the expiry of two years from the date on which such decision or order was made.

No order made or deemed to have been made under this Act shall be called in question in any court , and no suit, prosecution or order legal proceeding shall lie against any person for anything in good faith done or intended to be done under this Act or any order made or deemed to have made thereunder .

(1) The Central Government may , by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provided for all or any of the following matters, namely:-- (a) The manner in which and the conditions subject to which a special license may be issued under sub-section (2) of section 8; (b) The exception subject to which and the person or class of persons in respect of whom fees may be levied and the manner in which a license may be granted or renewed under sub-section (1)of section 9; (c) The class or classes of goods for which a license may be granted under sub section (2) of section 9; (d) The form in which and the terms, conditions and restrictions subject to which license may be granted under sub section (3) of section 9; (e) The conditions subject to which a license may be suspended or cancelled under sub section (4) of section 9; (f) The premises, good, documents, things and conveyances in respect of which and the requirements and conditions subject to which power of entry, search, inspection and seizure may be exercised under sub-section (1) of section 10; (g) The class or classes of cases for which and the manner in which an amount, by way of settlement, may be determined under subsection 3 of section 11; (h) The requirements and conditions subject to which goods and conveyances shall be liable to confiscation under sub section (5) of section 11; (i) The manner in which and the conditions subject to which goods and conveyances may be released on payment of redemption charges under sub section (6) of section 11; and (j) Any other matter which is to be, or may be, prescribed, or in respect of which provision is to be, or may be, made by rules. (3) Every rue and every Order made by the Central Government under this Act shall be laid, as soon as may be after it is made , before each House of Parliament, while it is in session , for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or the Order or both Houses agree that the rule or the Order should not be made , the rule or the Order, as the case may be, shall thereafter have effect only in such modified form or be of no effect, as the case may be: so, however, that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule or the Order.

(1) The Imports and Export (Control) Act, 1947 (18 of 1947) and the Foreign Trade (Development and Regulation ) Ordinance, 1992 (Ord. 11 of 1992) are hereby repealed. (2) the repeal of the Imports and Exports (Control ) Act 1947 (18 of 1947), shall, however, not affect, - (a) The previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) Any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or (c) Any penalty, confiscation or punishment incurred in respect of any contravention under the Act so repealed; or (d) Any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed. (3) Notwithstanding the repeal of the Foreign Trade (Development and Regulation ) Ordinance, 1992 (Ord. 11 of 1992), anything done or taken under the corresponding provisions of this Act.