TMI Blog2015 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... n stayed by the AT on 26th May 1995. This was also conveyed to the ED. If despite adjudication order attaining finality no payment is made of the penalty amount then certainly it could be said that Section 57 FERA is attracted. Here, however, with there being definitely a clear stay order passed on 8th July 2002, there was no justification for the learned ACMM to have proceeded to frame notice on 17th May 2003 against the Petitioners for the offence under Section 57 FERA. It is possible that on the date of taking cognizance of the offence on 23rd April 2002, the ACMM may have been justified in proceeding with the order since the formal order of stay was not yet passed but certainly once that order was passed further proceedings ought not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 passed by the learned ACMM framing notice in respect of the said offence against the Petitioners. 2. The background to the present petition is that a memorandum-cum-show cause notice ( SCN ) dated 25th October 1989 was issued to Continental Construction Limited ( CCL ) and its Directors in respect of purported violations of Sections 9 (1) (a), 19 (1) (d) as well as 29 (1) (b) read with Section 68 FERA. 3. An adjudication order ( AO ) was passed by the Special Director on 15th October 1990 imposing different amounts of penalties upon CCL and its Directors. Aggrieved by the aforementioned AO, appeals were filed by the present Petitioners before the Appellate Tribunal for Foreign Exchange ( AT ). 4. It is the case of the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th August 2002. It is at that stage the Appellants again went before the AT with fresh applications reiterating that even earlier they had filed stay applications and that on 26th May 1995 the Chairman, AT had granted stay but that the stay order was not communicated. The fresh stay applications were heard by the AT on 8th July 2002 in the presence of the Deputy Legal Adviser, of the ED. The following order was passed: Application has been filed for interim stay of the recovery. Facts and circumstances have been mentioned in the application filed today. Let this matter be placed on 26th July, 2002. Till then the recovery proceedings and the impugned order will remain stayed. 7. Notwithstanding the said order passed by the AT, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court in Navin Kumar Kapoor v. Enforcement Directorate 2009 [2] JCC 850 and submitted that in the facts and circumstances of the present cases, the offence under Section 57 FERA is not attracted. On the other hand, it has been contended for the Respondents that the said decision is distinguishable on facts and would not apply to the present cases. It is submitted that inasmuch as the cognizance of a complaint is taken by the learned ACMM even prior to the formal stay order passed on 8th July 2002 by the AT, the stay order taking cognizance cannot be interfered with and has to be taken to its logical conclusion. 12. The facts relevant to the present cases are that although the AO was passed on 15th October 1990, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make the payment of the penalty amount. However, if the adjudication order attains finality, or there is no stay of such order by a superior tribunal and there is no payment of the penalty amount, it can possibly be said that there is a wilful failure to make the payment. However, that is not the position here. 15. The Court has found that the facts of Navin Kumar Kapoor are similar to the present cases. There it was held that the offence under Section 57 FERA would not be attracted and the present cases where again the Petitioners have acted under the understanding that there was a stay of the recovery of the penalty amount granted by the AT in respect of which again the formal order was passed only on 8th July 2002. 16. As clari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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