TMI Blog2012 (4) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 9(1)(a) read with 64(2) of the said Act and ₹ 2,500/- on both of them for violation of Section 9(1)(e) read with 6(2) of FERA against the appellants in Appeal Nos. 143, 144/2003. 3. This Tribunal by an order, dated 21st February, 2011 concluded that so far as Appeal Nos. 143 and 144 are concerned they are filed by Mody Brothers and Anil Mody against whom the penalty is imposed as an abatement. The contention of Shri Anil Balani, Advocate is that the role of agent has come to the end after the contract of interest and he received the commission on full value. He was not concerned with the under-invoicing or mode of payment. After perusal of the record, there is absolutely no evidence to show that Anil Mody or Mody Bros., had any role to play in under-invoice the value of goods. According to them they have received full commission as agreed with the party and in absence of any evidence to show that the under-invoicing was under their instruction or within their knowledge they cannot be held liable as an abettor. 4. It is concluded that in the Appeal Nos. 143 and 144, the penalty of ₹ 2.00 lakhs on each of the appellant, i.e., Mody Brothers and Anil Mody fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the purported signature of the petitioner. No evidence was led to prove the said document and that the handwriting thereto was that of the petitioner. The said document was never authenticated by a handwriting expert, despite the denial of the document by the petitioner and his repeated requests to have the document examined by a handwriting expert. The impugned order as well as the order-in-original heavily rely on the letter, dated 24-5-1994 for the purpose of the allegation that the petitioner had made payment of USD 38,000. The impugned order does not consider the fact that such letter was recovered from the premises of Shri Anil Mody and not from the petitioner. Given the numerous lacunae pointed out by the petitioner in respect to the authenticity of the letter, dated 24-5-1994, it was imperative for the respondent to verify and authenticate the said document which it failed to do. In view of the letter, dated 24-5-1994 being invalid and not having been duly authenticated the said handwritten document cannot be relied upon for the purposes of concluding that the petitioner has violated Section 9(1)(a) of FERA and imposing penalty on the petitioner for such alleged violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing the suffix A to the invoice number was not known and proceeds on the erroneous presumption that the said invoices are invoices raised by the petitioner. Thus, such errors in the impugned order to the very root of the matter and therefore, the impugned order is untenable in its present form and is liable to be reviewed by this Hon ble Court. The so-called duplicate invoices bearing the suffix A were not verified by a bank, in the absence of which the said documents cannot be treated as genuine or could not be relied upon as conclusive evidence for the purposes of concluding that the petitioner had undervalued the goods imported and had actually made payment of USD 4,62,331.90 more than what was declared. D. The impugned order is contrary to the statements recorded. Without prejudice to the paragraphs above, a perusal of the statements recorded by DRI of the petitioner and Mr. Anil Mody clearly show that the said parties had denied payment as per the invoices being the letter A along with the invoice numbers and had confirmed on being shown the said documents that the same were fake. No evidence has been placed on record to show that the said invoices were gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment Corporation, USA. Thus, the allegations against the petitioner under FERA for alleged unauthorized payment of foreign exchange, arises from the allegations of misdeclaration of the value of goods imported under the Customs Act. Hence, the findings of the CESTAT in respect to the allegations of misdeclaration of the value of goods imported by the petitioner would necessarily have to be considered and taken into consideration in deciding the present case before this Hon ble Tribunal. The Hon ble Customs Excise and Service Tax Appellate Tribunal (CESTAT) in its order, dated 19-1-2011 in respect to the alleged invoices alphabetically marked, has come to the following finding : (14) .. This judgment of the Hon ble Supreme Court lends support to the Appellant inasmuch as the department did not, or could not disclose to them the source of the alphabetically marked invoices. The revenue could not produce the originals of these documents either in the circumstances, we have to accept the contention raised by the ld. Counsel that the presumption under Sec. 130 of the Customs Act, is not available in respect of the Xerox copies of what appeared to be alphabetically marked invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng adjudication proceedings is clearly provided in this statute, including the procedure of filing of First Appeal before FERA Board and Second Appeal before High Court. Similarly, Foreign Exchange Management Act, 1999, contains substantive and procedural provisions providing therein that adjudication proceedings can be held after a complaint is filed under Section 16 before adjudicating authority. However, in Foreign Exchange Regulation Act, 1973, the procedure of filing of complaint before adjudicating officer is totally absent but the adjudicating officer can take notice of contravention by issuance of a show cause notice where after a reply is required to be filed and proceedings can be held if adjudicating officer is dissatisfied with the reply to the show cause notice. Ld. Counsel contended that application of the fresh procedure available under FEM Act, 1999, only because FER Act, 1973, is repealed. According to Counsel, if procedure contained in Act of 1999 is not applied then principles of natural justice are violated. 9. The above described arguments are wrong. It can be said specifically that procedure is not interwined in the same statute under which offence/contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed of and pursued by the appellant. Also, by express language, the FER Act, 1973 is repealed and replaced by Section 49(1) by FEM Act, 1999 and Foreign Exchange Appellate Board (FERA Board) is dissolved. Further, it is specially mentioned by sub-section (5)(b) of Section 49 that appeals pending before FERA Board will stand transferred to this Appellate Tribunal for Foreign Exchange (in short the ATFFE). From this provision, it further flows on being inherent in this sub-section that any appeal if filed before FERA Board remedy under old Act alone is available as specified by Section 6(e) of General Clauses Act. Moreover, the appeal before the ATFFE is in continuation of adjudication proceedings so will be governed by the provisions of FER Act, 1973. Therefore, this appeal has to be decided under proper law which is none else but Foreign Exchange Regulation Act, 1973. 12. It is well-settled in law that whenever law is altered during the pendency of any action or remedy the rights of the parties are decided according to law as it existed when the action began unless new statute shows clear intention to vary such rights. There is no contrary explicit intention found in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of saving clause is, by itself, not material for consideration of all the relevant provisions of the re-enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to reserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether . 15. It is well settled in law that the legal proceedings validity instituted are not effected by amended law though insofar as forum is concerned, the substituted forum shall automatically apply. In Purshotam Singh v. Narain Singh - AIR 1955 Rajasthan 203 at 206 it was observed by Chief Justice Wanchoo (as his Lordship then was) that :- Section 6(e) has nothing to do with the forum where the investigation, legal proceeding or remedy has to be pursued. If the repealing Act provides a new forum where a legal proceeding coming on from before the repealing Act came into force can be pursued thereafter, the forum must be as provided in the repealing Act, and no party can insist that the forum of the repealed Act must continue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mistake on the part of the court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be involved to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case. 19. Also, the Hon ble Supreme Court in M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh - AIR 1964 SC 1372 held as follows : There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent . A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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