TMI Blog2017 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the 10% penalty amount deposit by the appellant be kept by the respondent and the appellant shall not claim the refund of the said amount. The impugned order is set-aside. - FPA-FE-1125/DLI/2004 - - - Dated:- 28-9-2017 - Justice Manmohan Singh, Chairman For the Appellant : Shri Madhav Khurana, Advocate For the Respondent : Shri Pankaj Yadav, Legal Consultant JUDGEMENT FPA-FE-1125/DLI/2004 1. The present appeal has been filed under Section 19 of the Foreign Exchange Management Act, 1973 against the order of the Adjudicating Officer No. DD (SS)/DZ/116/2004/1235 passed on 23.02.2004 whereby the Adjudicating Officer has held that the appellant as having contravened the provisions of Section 8(3) 8(4), 73 read with Section 68 of the Foreign Exchange Regulation Act, 1973. 2. As the appellant was held guilty and a penalty of ₹ 8,00,000/- (Rupees Eight Lakhs) was imposed on the Appellant. The case of Appellant inter alia was that the Appellant was not a Director responsible and in-charge for the day-to-day affairs of the Company, any contrary finding of liability and/or imposition of any penalty especially of such a huge amount is legally unjustifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Pvt. Ltd. for distribution of add-ons for the computers sold by Unicorp Group and that in appreciation of the work done by the employees of Unicorp, they shall be appointed to the board of the Company. 4.2 Pursuant to the aforesaid announcement on 29.07.1997 the Appellant, Mr. S.P. Rajguru and Mr. Brij Bhushan were appointed to the Board of the Company as Directors. It is the case of the appellant that he did not participate in day-to-day working/business of the Company as he continued his job as a General Manager, Unicorp and operated from the office situated at C-177, Okhla Industrial Area, Phase 1, New Delhi whereas the Company was operating from the premises of Unicrop Group, Gurgaon. It is alleged by the appellant that one Mr. Arun Sogani was responsible and in-charge of all documents/records of any/all transaction entered into by the Company. 5. During his employment with Unicorp, the Appellant was offered an employment by M/s. NetLink Ranve Infotech Sdn. Bhd., Kuala Lampur, Malaysia, therefore, the Appellant tendered his resignation vide letter dated 29.07.1999, to the Chairman of the Company, however he received no acknowledgement of the same. Thereafter the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 8(3) 8(4), 73 read with Section 68 of the Foreign Exchange Regulation Act, 1973, [the FERA] and Chapter 7A, 20(i) of Exchange Control Manual, 1995 on 24.09.2004. 10. It is specifically alleged by the appellant that despite the fact that the Appellant had not been served with any notices and the Adjudicating Officer proceeded to decide the case ex-parte and passed the impugned order dated 23.02.2004 whereby the adjudicating officer imposed a penalty of ₹ 8 lakhs on the Appellant. 11. Upon learning of the passing of the impugned Order, the Appellant wrote several letters to the HDFC Bank, K.G. Marg, New Delhi, enquiring about the alleged transaction. The Bank, vide letter dated 01.11.2004 informed the Appellant that they are unable to furnish the details to him as they require some more details about the alleged transaction. 12. It is the case of the appellant that the Appellant has not committed any offence and the Appellant has not contravened any provision of the Foreign Exchange Regulation Act as the Appellant. The penalty of ₹ 8,00,000/-, which has been imposed on the Appellant, is unjustified as no offence has been committed by the Appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Enforcement imposing a penalty of ₹ 8 lacs against the appellant for contravention of Sections 8(3), 8(4) 73 and 68 of the Foreign Exchange Regulation Act, 1973 (FERA). The statutory period of limitation for preferring an appeal, prescribed in Section 52 of FERA, is 45 days from the date on which the order is served. The Appellate Tribunal may entertain any appeal after the expiry of the said period of 45 days, but not after 90 days , if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Since the appeal had not been preferred within 45 days, or even within the period of 90 days from the date on which the adjudication order dated 23.02.2004 had been served, the Appellate Tribunal dismissed the appeal by holding that it does not have the power to condone the delay beyond the period of 90 days. The appeal had been preferred on 08.11.2004, i.e. there was a delay of over five monthsbeyond the 90 days period. Learned counsel for the appellant has submitted that since the adjudication order imposes a huge penalty of ₹ 8 lacs upon the appellant, his valuable right of appeal should not be denied on a technical gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to promptly prefer the appeal, either within 45 days, or even within 90 days of the passing of the adjudication order dated 23.02.2004. A valuable right of the appellant to be heard in appeal has been denied. It is pertinent that he was not heard at the adjudication stage as well, on account of his claim of his non-availability at India at the relevant time. In view of the aforesaid, in the interest of justice and so as to prevent miscarriage of justice, I am inclined to allow this petition. Accordingly, the same is allowed. The delay in filing the appeal is condoned. The appellant is remanded back to the Appellate Tribunal, which is directed to hear the matter on merits and dispose of the same as expeditiously as possible. 16. It is alleged by the appellant that the appellant has deposited 10% of the penalty imposed as per order. However, it is argued on behalf of the appellant that he has not received the show cause notice and required documents. The respondent on the other-hand submitted that the notice was served upon the last address, there is a presumption of service. The appellant time and again requested the respondent to produce the proof of service. 17. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te: 13/1/17 To The Hon ble Member, Single Bench, ATFE, HT Building, New Delhi Sub: Appeal no. 1125/04 in the matter of RVS Minhas V/s ED. Sir, That the above appeal is pending before Single Bench of ATFE. The instance appeal was filed against the Adjudication order dated 23/2/2004 passed by Sh. S. Subbiah, Deputy Director. On the various dates of haring ATFE directed Respondent (ED) to produce the certain documents from investigation file (T-4) as required for the disposal of the appeal. Despite best efforts of the Delhi Zone the investigation file of above said appeal could not be traced out. Therefore, it is kindly requested to remand back the matter for fresh adjudication. Submitted for information please. Yours faithfully, (R.K. Tiwari) Deputy Director 20. In similar circumstances has quashed the proceedings in Criminal Appeal No. 2402 of 1981 Decided on 02.12.2015 in the case of Tej Pal Singh and Ors. Vs. State of U.P. The relevant para 4, 5 and 16 are read as under:- 4. As per office report dated 28.04.2003, lower court record was not received. Thereafter on 29.04.2013, the other coordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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