TMI Blog2018 (3) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to prefer an appeal only once the “order” is passed and not against hearings conducted by Adjudicating Authority in adjudication proceedings. The contention of the appellant that Section 19(6) empowers the Tribunal to suo moto examine the “legality, propriety or correctness of any order” made by the Adjudicating Authority is not restricted and limited to the final order and that the words “any order” in Section 19(6) and “an order in Section 19(1) has to be given the same meaning is misconceived and misleading. This could not have been the intent of the legislature as every notice issued by Adjudicating Authority or hearing/enquiry conducted by Adjudicating Authority in the process of adjudication so as to enable him to pass an “order” could become a subject matter of appeal. In the instant case, the conditions for filing Appeal has not been satisfied as no “penalty” has been imposed in the absence of “an order”. As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal filed by the appellant is pre-mature and hence non- maintainable. It would not be prudent for this Tribunal to entertain the appeal against the “record of personal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cross enamination of ( the cross examination ) of Mr. Mitil Chokshi Partner M/s Chokshi LLP, by our Authorised representative/CA, Dr. Dilip K. Sheth on 20th September, 2017 We address you in continuation of your letter dated 21st August 2017 and the cross examination on 20th September, 2017 and the transcript of the cross examination of your witness Mr. Mitil Chokshi of M/s. Chokshi Chokshi LLP, Chartered Accountants. We wish to place on record that the cross examination commenced at 12:30 pm and continued till 6:00 pm continuously in the presence of Your Honour, Mr. Joseph George, Ms. V. Kalyani (Complainant), our Authorised representative/CA, Dr. Dilip K. Sheth, Ms. Saloni Ganesh of M/s. Knight Riders Sports Private Limited, the witness Mr. Mitil Chokshi and his assistant and his lawyers Ms. Divya Bahl and her Associate/Assistant. The cross examination continued with many long interruptions, when the witness took time to consult his lawyers before answering, despite our Authorised representative/CA s objections to the same. As a result, the cross examination has remained incomplete. When our authorized representative/CA requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticees in the subject SCN, separately. 4. This letter is issued with the approval of the Special Director of Enforcement, Mumbai. Yours faithfully, -Sd- (V. Kalyani) Assistant Director 4. In the background of the above facts, the appellant filed an appeal on 30.10.2017 before this Tribunal, wherein the following prayer had been made: - i. That the said order dated 12th October, 2017 bearing File NO. T- 4/01-B/SDE(VA)/WR/2017/2418 passed by the Learned Special Director of Enforcement, be set aside. ii. That a further date be fixed for completion of the cross- examination of the witness, Mr. Mitil Chokshi. iii. That pending the hearing and final disposal of this Appeal, the subject adjudication proceedings initiated under the said Show Cause Notice, be stayed, and no coercive action be taken against the Appellants. iv. Pass such other orders as deemed fit and proper in the facts and circumstances in this case. 5. The above appeal had been heard and adjudicated upon by this Tribunal and vide order dated 13.11.2017, it was observed as under: - 1. The present appeal has been filed u/s 19 of the FEMA Act-1999 against the order dated 12t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing any opinion in view the contents mentioned in the letter dated 12.10.2017 counsel for the appellant at this stage seeks liberty to move the application for further cross-examination or recall of witness. The same may be filed as per law and if any such application is filed, the same will be determined by the Adjudicating authority as per on its merits. 6. The appeal is accordingly disposed of. If any application is filled by the appellant by 15th November, 2017 the Adjudicating Authority shall consider as per on its merit and decide the same before hearing of the main matter. Copy of the order be given dasti to both the parties. 6. In pursuance of the aforesaid Tribunal s order dated 13th November, 2017, the appellant had made an application to the respondent praying that: - (i) Mr. Mitil Chokshi be recalled by your Honour for cross-examination; (ii) That further dates be fixed by your Honour towards cross- examination of Mr. Mitil Chokshi; (iii) That the present application be heard and decided on merits by your Honour and an order be passed on the present application; (iv) That if your Honour were to rule against this application then the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has given a direction that if any such application is filed before the Adjudicating Authority, the same will be decided by the Adjudicating Authority, as per its own merit. 5. The learned counsel contended that the cross examination of Shri Mitil Chokshi by the Advocate of the Noticee Company held on 20.09.2017 was inconclusive and hence they should be allowed to conduct further cross examination of the said Shri Mitil Chokshi, in the interest of natural justice and fair play. He further submitted that there are questions which are required to be asked to Shri Mitil Chokshi on several glaring ambiguities and contrary statements noticed in the Opinion given by C C relating to the valuation, principles, methodology adopted by them in evaluating the shares of M/s. KRSPL. There are discrepancies noticed on various assumptions reflected in the work sheet vis- -vis the discussion in the Opinion which includes the prize money revenue growth, capitalization rate, etc. The ld. Counsel also submitted that he wanted to know about the terms of engagement of C C and the scope of work mandated to them by the ED. These questions, he wanted to raise because the letter of engagement give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thodology adopted by C C in arriving at the valuation on the value of KRSPL shares was not in consonance with the requirements of the CCI guidelines. vi) The prize money won by KRSPL for one year was taken as income for the subsequent years as well which is unrealistic, as there is no guarantee for winning the prize money by KRSPL year after year. 8. After a careful examination of the contents in the application filed by KRSPL and also the oral submissions made by the learned counsel during the course of personal hearing, I find that the case laws cited by him and the arguments put forth by him are all related to the importance of allowing cross examination of witnesses, in the dispensation of justice. However, in this duly allowed in the interest of natural justice. On 20.09.2017 the counsel representing M/s KRSPL, Shri Dilip K. Sheth, was allowed to cross examine Shri Mitil Chokshi, partner of M/s C C. In fact as many as 45 questions were put to Mr. Mitil Chokshi and after 5:30 hours of exhaustive cross examination the same was concluded and the same was duly noted in the record of cross examination, countersigned by both Shri Mitil Chokshi and Shri Dilip K. Sheth, Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, it is revealed from records that a copy of the engagement letter dated 26.06.2013 was provided to M/s KRSPL vide this office letter dated 14.08.2017 and there is no scope of any ambiguity regarding supply of engagement letter of C C to M/s KRSPL. I, therefore, find that there is no merit in the application filed by M/s KRSPL, seeking inspection of the said letter/document. Accordingly, I reject the application made by the KRSPL on this count. 12. Also, the request made in the said application, seeking adjournment of the main matter till such time the appeal is filed by the company, in the event of rejection of their application by the Adjudicating Authority, is also rejected by me as the Hon ble Appellate Tribunal has already given a ruling on this issue in its order dated 13.11.2017, whereby, the Adjudicating Authority was directed to decide the said application as per its own merit. 13. The 3rd application dated 15.11.2017 filed by the Ld. Counsel relates to the intimation regarding the filing of appeal by KRSPL before the Appellate Tribunal under Section 19 of FEMA, 1999 against the rejection of the Adjudicating Authority of their request for cross examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the foresaid two appeals have now been disposed of by the Hon ble ATFE, New Delhi on 13.11.2017, the learned counsel, who appeared for the personal hearing on 15.11.2017, was directed to go ahead with the arguments, but he refused to proceed with the arguments by stating that he was not in a position to proceed with the arguments on the main issues, till the decision is taken by the Hon ble ATFE on the appeals now proposed to be filed by them before the Appellate Tribunal against the order of rejection of their application passed by the adjudicating Authority. Thus, it is seen that in spite of giving numerous opportunities and granting many adjournment, the advocates of KRSPL are resorting to delaying tactics in spite of fore-warnings given to the effect that the decision will be taken on the basis of available evidence and effect that the decision will be taken on the basis of available evidence and material. In view of the above facts, I have decided to conclude the Adjudicating proceedings in the matter in terms of the provisions of FEM (Adjudication Proceedings Appeal) Rules, 2000. Reserved for orders. 8. The present appeal has been filed against the aforesaid rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the words an order contained in Section 19(1) is to be given a wide and liberal interpretation to mean any order which affects valuable rights of a person aggrieved or the Central government. It is not limited to a final order passed under Section 13 read with Section 16. When an Appeal is filed against an order levying penalty, there is specific reference to such an Appeal. See the first proviso to Section 19(1) which states as under: Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government; 3. The contradistinction between the words any person appealing against the order of the adjudicating authority levying any penalty appearing in the first proviso to Section 19(1) is the clearest indication that wide interpretation is to be given to the words an order contained in Section 19(1) since a species of an order i.e. the final order levying penalty is dealt with separately in the first proviso to Section 19(1). 4. Section 19(6) empowers the Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining the witnesses. Non- production of witnesses for cross-examination it was held is violative of principles on natural justice and fair play and need no judgements. We may gainfully refer to the judgement in Arya Abhushan Bhandar V. Union of India [2002 (143) E.L.T. 25 (SC)]. In Sunder Ispat Limited V. Commissioner of Cus. C. Ex., Hyderabad [2002 (141) E.L.T. 24 (A.P.)], a learned Division Bench of the Andhra Pradesh High Court held that the witnesses examined on behalf of the Department had to be produced for cross-examination in accordance with the principles of natural justice. We may also refer to the judgement of the Supreme Court in Lakshman Exports Limited V. Collector of Central Excise [2002 (143) E.L.T. 21 (SC)]. This also was in respect of proceedings in adjudication proceeding. That cross-examination at the stage of adjudication cannot be denied, is rectified in a large number of judgements. See: Gyan Chand Sant Lal Jain V. Union of India [2001 (136) E.L.T.9 (Bom.)], Swadeshi Polytex Ltd. V. Collector of Central Excise, Meerut [2000 (122) E.L.T. 641 (SC)], Prayagdas Tushinal V. Collector of C. Ex. Land Customs, Shillong [2000 (125) E.L.T. 377 (Gau.)], Lachmandas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alization rate of 20% being applied and not 15% (see page 816, Folder IIIA of Memo of Appeal), it is inter alia amongst this and other such discrepancies that, Mr. Mitil Chokshi must explain these discrepancies as appearing in his Opinion as against the support work sheets. It is submitted that whilst no prejudice would be caused to the Respondent by the recall of the witness, grave injustice and grave prejudice would be caused to the Appellant if the Appellant was not permitted to recall the witness and satisfactorily cross examine him further. SUBMISSIONS BY THE RESPONDENT 10. The above contention of the appellant that the documents were given at the end of hearing was vehemently denied by the learned counsel for the respondent who submitted that he would be filing an affidavit in this regard to the fact that the copy of the said document had been supplied to the Authorised Representative of the appellant conducting the cross examination. It was further deposed by the respondent that certain specific questions relating to the set of papers given to the appellant earlier had also been made and the replies given by the witness included details contained in the said documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shadri (1973) 1 SCC 761, wherein it has been held: .A quasi-judicial tribunal acting within jurisdiction may decide rightly or may decide wrongly. If it decides wrongly there are provisions in the Act itself for appeal, revision and ultimately even revision by the High Court under the provisions of Section 115 CPC or even under Article 227 of the Constitution. Of course, by a wrong decision on a jurisdictional fact a quasi-judicial tribunal with a limited jurisdiction cannot confer jurisdiction on itself .. Attention has also been drawn to the fact that the Hon ble Supreme Court and High Courts have deprecated the practice of challenging the proceedings at the initial stage on various small issues. Attention has been drawn to the similar view been taken by the Hon ble Division Delhi High Court in the Case of Arun Kumar Mishra Vs. UOI Ors. (2014) 208 DLT 56, wherein the Hon ble High Court have held: - 9. We have however invited the attention of the senior counsel for the appellant to Cooper Engineering Ltd. Vs. P.P Mundhe (1995) 2 SCC 661 laying down that there is no justification for a party to stall the final adjudication of the dispute by questioning the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation raised by the appellant is that under Section 19(6) of the Foreign Exchange Management Act, 1999 this Tribunal has the power to interfere with any order, the respondent has contended that the reference of any order is the only order of penalty because the language of the Section clearly indicates to examining the legality, propriety or correctness made by the Adjudicating Authority under section 16 and Section 16 of the Act relates to the process to be followed by the Adjudicating Authority and nowhere refers the word order . Mentioning further that even the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules 2000 under Section 4 which mandates holding of enquiry and the entire sub clauses of Section 4 defines the Stages of the enquiry and the manner in which the inquiry should he held and till Section 7 the entire process of enquiry is given and the first time the order comes in existence is under Sub Clause (8) of Section 4 which says if upon consideration of evidence produced before the Adjudicating Authority, the Adjudicating Authority is satisfied that the person has committed the contravention he may by order in writing impose such penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. I state that under question No. 40, a specific query was raised by the counsel for KRSOL regarding the underlying assumptions made by C C in their Opinion for the unusual high growth rate of 12% on the total income of KRSPL for the FY 2013-14 as against its income for the FY 2012-12. While answering Question No. 40, Mr. Chokshi referred to an internal paper (i.e. Page 191 of the appeal paper book and as recorded in order dated 22.11.2017). The counsel for KRSPL sought a copy of that paper, which was provided to them as duly recorded in the relevant transcript of the cross examination. Thereafter, the counsel for KRSPL started asking questions from the said sheet of paper provided to him. The question Nos. 41 to 45 relate of this internal reference paper of C C. With regard to the Question No. 40, It was stated by Sh. Mitil Chokshi that they had identified 11 line items of Income and 61 line items of expenditure from the balance sheet of KRSPL, to justify the increase of 12% growth rate. The question No. 41 is linked up to the prize money which is at SI No. 2 of the 11 line items of Income, mentioned in the said sheet. The subsequent Question viz. Nos. 42 43 pertain to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L earlier. It is also worthwhile to mention that this office, while providing the said work sheet to KRSPL, has informed them that if they required any clarifications on the said documents, the same should be communicated on or before 19.08.2017 i.e. before the cross examination. However, no clarification on the documents forwarded under letter dt. 14.08.2017 was sought by KRSPL. The cross examination thus was concluded on 20.09.2017, as duly recorded in the transcript of the cross examination, which was countersigned by the Counsel for KRSPL. The demand for extra time for going through that page was not felt by the Defense Counsel and the cross examination was concluded. The issue is raked-up again for the purpose of delaying the adjudicating process. 9. I state that the appellants are making wrong oral statements contrary to the record with a view to mislead and prejudice the mind of this Hon ble Tribunal, which reflected from the fact that before commencing the cross examination, appellants were given a letter, specifically mentioning that whatever documents they required for the purpose of cross examination were provided. They were told that in case they require any clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n including the document available at page no. 191 which has been filed in the appeal and is available in the document life. The counsel for the respondent denies the submission of learned counsel for the appellant. He seeks time to file the affidavit in this regard within one week to the effect the copy of the said document was supplied to the counsel much earlier point of time. Let the affidavit be filed within one week with an advance copy to the learned counsel for the appellant who may file the response, if any, within one week thereafter. (emphasis supplied) 6. It will therefore be seen that the limited purpose for which the Respondent was to file an affidavit, was to whether the said Assumption Sheet had been handed over on 20th September, 2017 or on a date prior to that, as submitted by the Respondent at the time of the hearing on 22nd November, 2017. As aforesaid, I reiterate that the said Assumption Sheet was handed over on 20th September, 2017 and not on any date prior thereto. This fact is also clearly confirmed in the said affidavit . It is submitted that the Appellant s contention in this regard therefore stands fully vindicated by the clear admission of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made by the Appellant in this regard. The record itself clearly establishes that it was and is the Appellant s contention that the said Assumption Sheet was only handed over to the Appellant at the culmination of proceedings on 20th September 2017. Additionally, it is also submitted that, the Respondent has nowhere denied the said contention of the Appellant as appearing both in the Application dated 14th November 2017 and in the Memo of Appeal as reproduced hereinabove. In fact, at the time of the hearing on 22nd November 2017, it is the Respondent who orally submitted that the said Assumption Sheet was furnished to the Appellant under cover of letter dated 14th August 2017; and which submission has been recorded in the order dated 22nd November 2017 as; He seeks time to file the affidavit in this regard within one week to the effect the copy of the said document was supplied to the counsel much earlier point of time. (emphasis supplied). By reason of the clear admission of the Respondent made in the said affidavit particularly at paragraphs 6 and 7 thereof, it is now clearly established that the said Assumption Sheet was only handed over to the Appellant at the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the percentage variation attributable to none of these 11 income/revenue items is mentioned/indicated in the Working Sheets. 13. Similarly, of the 61 expenditure line items, appearing in the said Assumption Sheet other than line item Nos. 1 (Franchise Fee), 2 (Cost of Players) and 61 (Depreciation/Amortization); no specific amounts attributable to any of the other 58 items can be discerned and/or individually identified from the Working Sheets. Additionally, the percentage variation attributable to none of these 61 expenditure items is mentioned/indicated in the Working Sheets. 14. I say that, inter alia under paragraphs 6 7 of the said affidavit , the Respondent has also sought to wrongly allude that, Q.41 to 45 of the cross-examination of Mr. Mitil Chokshi, (held on 20th September, 2017), were questions which the authorized representative of the Appellant had asked, whilst referring to the said Assumption Sheet. I submit that this contention by the Respondent is incorrect. I state that questions 41 to 45 put forth by the Appellant s authorized representative were with a reference to the audited accounts of the Appellant and the C C Working Sheets provided to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not asked from the Assumption Sheet. 15. As quoted by me (from the Application dated 14/11/2017 and the present Appeal), in paragraph 8 hereinabove, I reiterate that, the Appellant did not have any opportunity to question the witness about the contents of the said Assumption Sheet, since it was handed over at the culmination of proceedings on 20th September 2017. I reiterate that questions 14 to 15 put to the witness were not raised from the Assumption Sheet. 16. In paragraph 8 of the said affidavit it is also wrongly contended that, although called upon to do so, the Appellant did not seek clarifications to the documents forwarded by the Respondent to the Appellant under cover of their letter dated 14th August 2017. This statement is false and incorrect to the knowledge of the Respondent. The Appellant in reply to the said letter of 14th August 2017, sent a letter dated 18th August 2017, which was duly accepted and acknowledged by the Respondent on 18th August 2017. By the said letter, the Appellant sought various clarifications including a specific clarification relating to the underlying assumptions made by M/s. Chokshi and Chokshi in the Working Sheets pertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of FEMA was also amended in the year 2017 whereby, the constitution of the Appellate Tribunal under FEMA is now to be the same as the Appellate Tribunal constituted under sub-Section (1) of Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. The constitution of the Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is under Section 12 of that Act. Amendment to Section 12(6A) effective from 1st June 2016 specifically provides that where the Chairman considers it necessary for the expeditious disposal of appeals he may constitute a bench with one or two members and the bench so constituted may exercise and discharge the powers and functions of the Appellate Tribunal. Section 12(6A) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is reproduced hereunder: (6A)Notwithstanding anything contained in sub-section (6), where the Chairman considers necessary so to do for the expeditious disposal of appeals under this section, he may constitute a Bench with one or two members and a Bench so constituted may exercise and discharge the power and functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent. As aforesaid, the Appellant has filed detailed Written Submissions in the matter relating to the maintainability of the present Appeal under Section 19 of FEMA. With respect it is submitted that the appeal provisions of PMLA cannot simplicitor be made applicable to the appeal provision of FEMA which are different. ii. It is to be noted that Section 19(6) of FEMA empowers the Appellate Tribunal to suo-moto examine the legality, propriety or correctness of any order made by an adjudicating authority under Section 16 and make such order as it thinks fit. The phrase any order in Section 19(6) once again clearly indicates that it is not restricted and limited to the final order. Section 16(3) requires the adjudicating authority to hold an enquiry under Section 16(1). Section 16(5) deals with the powers of the adjudicating authority during such enquiry. Section 16(6) provides for the enquiry to be disposed of within a timeframe, failing which reasons are to be recorded in writing for not disposing of the complaint within the said period. Thus, there are a variety of orders that could be passed under Section 16 and not only a final order. All such orders would be revisable by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AND SUPPLEMENTARY WRITTEN SUBMISSIONS DATED 9TH JANUARY 2018 FILED BY THE APPELLANT IN APPEAL NO. 88 OF 2017. i. The Appellant relies upon and adopts in their entirety, the Written Submissions and Supplementary Written Submissions filed by this Appellant in this Hon'ble Tribunal on 6th December 2017 and 9th January 2018 in Appeal No. 88 of 2017. ii. Appeal No. 88 of 2017 is primarily in context of the recall/cross- examination of the witness on behalf of the Respondent, Mr. Mitil Chokshi. iii. The present appeal is primarily towards seeking the cross- examination of the other witnesses on behalf of the Respondent,i.e. the Complainant Mrs. V. Kalyani and the Investigating Officer, Mr. D.K. Sinha. All submissions made, case laws relied upon and documents relied upon by the Appellant in context of, the reasons, rationale, justification and necessity,towards cross-examining the witness in Appeal No. 88 of 2017, are fully adopted by this Appellant in these Written Submissions as if the same were set-out herein seriatim. B. RELEVANCE OF THE WITNESS, MR. D. K. SINHA (INVESTIGATING OFFICER) AND THE NEED TO CROSS EXAMINE HIM. i. By an application dated 30th October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving their independent opinion on valuation to be based on the erstwhile CCI Guidelines (only); and not to be based upon any other conclusions or findings. In Q.19 to Q.21 of his cross-examination, Mr. Chokshi confirms that M/s. Chokshi Chokshi had not asked for the said Investigation Report but the same had been made available to them, (See pages 221 222 Folder III of the Memo of Appeal). viii. In giving their Opinion in October 2014, the said Investigation Report is marked as Exhibit 7 to the said Opinion by M/s. Chokshi and Chokshi. It is therefore an admitted position that the Opinion of M/s. Chokshi Chokshi relies upon the said Investigation Report. ix. It therefore becomes very essential to cross-examine Mr. D.K. Sinha, the Investigating Officer. x. The Investigation Report also contains numerous incorrect assertions, although relevant documentation in that regard had been provided to the Investigating Officer. Inasmuch as the Investigation Report and correspondingly its conclusion are inter alia erroneous, since various premises and assertions contained therein are factually incorrect and belied by the documents on record. By way of illustration only, one su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the respondents is relying on the written submission filed in Appeal 88 of 2017 and are not repeated herein for the sake of brevity, however the present written submissions are filed to respond to the factual matrix raised in the present appeal. 4. The following payers were made by the applicant in the subject Appeal:- a. Set aside the order dated 30.10.2017 passed by the Adjudicating Authority, rejecting the request for cross examination of the above officials of ED. b. Allowing Cross- examination of the above officials. c. Stay of the adjudication proceedings till the disposal of the subject Appeal. 5. Justification given by the appellant in the appeal filed before ATFE for cross examination of the above officials are given as under:- (A) Shri D. K. Sinha, AD The valuation report prepared by M/s Chokshi Chokshi CA was reportedly based on the investigation report prepared by Shri D.K.Sinha, which was forwarded to C C. The complaint filed by the complainant heavily relies this report prepared by C C. Hence, the cross-examination of Shri D.K. Sinha was warranted. (B) Smt. V. K. Kalyani, AD (Complainant) The complaint filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e one goes into the merits of the appeal, the main issue that has to be examined relates to the admissibility of the appeal. As stated earlier, the applicant has made an appeal to this Tribunal u/s 19 of the FEM Act-1999. In order to examine the admissibility of the instant appeal, it is imperative to re-produce/examine the provisions of Section 19 of the said section, which reads as under: - 19. Appeal to Appellate Tribunal (1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal: Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the said record, the Special Director has dealt with three applications submitted by the counsel of the appellant for consideration by the Adjudicating Authority. After consideration of the said three applications, the Adjudicating Authority has decided to conclude the Adjudication proceedings in the matter in terms of provisions of FEMA, 1999 and reserved for orders . 3. The above observation of the Adjudicating Authority would clearly show that hearing was conducted by him as part of adjudication proceedings and no order has been passed by him. 4. In case of the instant appellant, it is also observed that the four appeals have been filed. The details of the appeals and the prayer therein are as under: 1) Appeal No. FPA-FE-83/MUM/2017 In the said appeal filed before this Tribunal on 30.10.2017, the appellant has prayed as under: (i) That the said order dated 12th October, 2017 bearing File No. T-4/01-B/SDE(VA)/WR/2017/2418 passed by the Learned Special Director of Enforcement, be set aside. (ii) That a further date be fixed for completion of the cross- examination of the witness, Mr. Mitil Chokshi. (iii) That pending the hearing and final disposal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der be passed therein. (iv) Pass such other order(s) as deemed fit and proper in the facts and circumstances in this case. 5. A perusal of item (iii) of the said prayers of the appellant in all the 4 appeals filed reads as under: That pending the hearing and final disposal of this Appeal, the subject adjudication proceedings initiated under the said Show Cause Notice, be stayed and no coercive action be taken against the Appellants. which clearly indicates that the appellant accepts that the Adjudication proceedings have been initiated and no order has been passed therein. The perusal of the hearing on 15.11.2017 also indicates that Special Director, Enforcement Directorate, Mumbai - in pursuance of this Tribunal s order dated 13.11.2017- has examined the issue regarding further cross examination and has come to the conclusion that the issue raised in the proposed further cross examination had already been addressed in the cross examination held on 20th October, 2017 and also pointed out that the fact of the records of the cross examination clearly stated that the cross examination was concluded at 6.00 p.m. today, 20th September, 2017. 6. The submissions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to follow a particular course of action in the Adjudication process, which is summarized as under: 1) Appeal No. FPA-FE-83/MUM/2017 That a further date be fixed for completion of the cross-examination of the witness, Mr. Mitil Chokshi. 2) Appeal No. FPA-FE-84/MUM/2017 That the Special Director of Enforcement be directed to provide Appellants full, fair and complete inspection and discovery of documents as requested. 3) Appeal No. FPA-FE-87/MUM/2017 That the Appellants be permitted to fully and effectively cross-examine the Complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha. 4) Appeal No. FPA-FE-88/MUM/2017 Appellant be permitted to (i) recall Mitil Chokshi as witness and conduct the cross-examination (ii) fully and effectively cross-examine the Complainant Mrs. V. Kalyani and the Investigation Officer Mr. D. K. Sinha. 11. As would be observed from the above, appeals have been filed at various stages during the course of Adjudication proceedings praying this Tribunal to pass certain directions to the Adjudicating Authority. Even the instant appeal has not been filed against an order of the Adjudicating Authority. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior counsel for the appellant to Cooper Engineering Ltd. Vs. P.P Mundhe (1995) 2 SCC 661 laying down that there is no justification for a party to stall the final adjudication of the dispute by questioning the decision on preliminary issues and to S.K. Verma Vs. Mahesh Chandra (1983) 4 SCC 214 deprecating the practice of raising preliminary issues/ objections, to delay and defeat adjudication on merits and to D.P. Maheshwari Vs. Delhi Administration (1883) 4 SCC 293 also laying down that all issues whether preliminary or otherwise should be decided together so as to rule out the possibility of any litigation at interlocutory stage. Attention of the senior counsel for the appellants is also invited to National Council for Cement Building Materials Vs. State of Haryana (1996) 3 SCC 206 noticing the appalling situation created due to challenge to the decision on preliminary issues in the High Court and during which time the reference is stayed and lies dormant and laying down that the High Court should refuse to intervene in the proceedings before the Tribunals at an interlocutory stage. 13. The Adjudicating Authority is currently seized of and in seisin of the complaints. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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